before you buy - it is condition precedent that you accept all of our terms and conditions and by pressing the buy now button and or sending any form of electronic payment and or sending cash and or sending payment via cheque/s you thereby except our conditions without further conditions that you may want to impose later. You also accept that we may change our conditions at any time without prior notice.
You should ensure that you have microsoft excel version 2010 or higher to enable function to work as designed
Other system requirements are;-
Windows 7, 8 10 or above
MS Internet Explorer or Chrome or Brave
2 GB RAM (4 GB recommended)
The information for sale is the software available on-line at www.constructionrates.co.uk it is authorised by Construction Rates. This is a tool for construction professionals. You must double check the correctness of all rates before tendering and or entering into a contract with another party. All rates and prices generated are provided as a general indication only and may differ depending upon site conditions, volume etc. We do not warrant their accuracy. We do not warrant the suitability of any organisation contained within this site. The producers of this site will accept no liability whatsoever for any loss [howsoever arising] which may result from using this or any information on or obtained from this site. You must accept the above before you may use this site. You are responsible for any losses that may result from not checking all rates with an appropriate source. If you Do Not Accept the above you should not use any information in any way. (c) Copyright Construction Rates 2017 - By continuing you are accepting our copyright and our conditions.
1. SERVICE ACCESS.
Subject to the terms and conditions of this TOU, including payment by Customer of all amounts due hereunder, Construction Rates grants a nonexclusive, non-transferable license to Customer to access and use the Productivity Enhancing Solutions and to provide Users the right to access and use Customer’s Productivity Enhancing Solutions in accordance with the usage rights identified in the applicable authorized Construction Rates order form, enrolment form or other document (whether in hard copy, electronic or otherwise) or Construction Rates-approved customer P.O. (the “Order Form”). The Productivity Enhancing Solutions may be accessed and used by Customer and Users only in connection with Customer’s business purposes and only to the extent for which Construction Rates has authorized access rights. The access rights requested by Customer (e.g., number of Users, storage capacity, etc.) shall be specified in the Order Form. To be eligible to access and use the Productivity Enhancing Solutions and provide access rights to Users, Customer must complete a valid Order Form and either (i) be authorized to use the Productivity Enhancing Solutions via the Order Form and must be current in all payments due hereunder; (ii) have validly received access to the Productivity Enhancing Solutions as an Construction Rates Subscription benefit and must be current in all payments due as an Construction Rates subscriber, (iii) have validly received a Trial Version (defined below) of the Productivity Enhancing Solutions from Construction Rates, or (iv) have validly received access to the Productivity Enhancing Solutions or portion thereof from Construction Rates through a separate Construction Rates product or service.
Subject to the requirements set forth herein, the Customer may provide unique user log-in information only to Users who collaborate on Customer’s project to enable such Users to access the Productivity Enhancing Solutions. Customer shall be responsible and liable for all Users’ compliance with this TOU, access to and use of the Productivity Enhancing Solutions. Construction Rates will not allow more than one individual to access the Productivity Enhancing Solutions at the same time under a single user license. Except as otherwise expressly permitted herein, Customer will not: (i) rent, lease, lend, assign, sublicense, transfer, distribute, sell, or otherwise make available, the Productivity Enhancing Solutions to any third party; (ii) use or permit the Productivity Enhancing Solutions to be used, as part of a service bureau, time-sharing, interactive cable system or otherwise, for the benefit of any third party; or (iii) reverse engineer, decompile, or disassemble the Productivity Enhancing Solutions or permit any third party to do the same. Customer and its Users may not (a) remove, alter, or obscure any proprietary notices, labels, or marks from the Productivity Enhancing Solutions, or (b) modify, translate, adapt, arrange, or create derivative works based on the Productivity Enhancing Solutions for any purpose without Construction Rates’s prior written authorization. The Productivity Enhancing Solutions may be accessed and used only as a single product and its components may not be separated for access, distribution or use unless expressly permitted by Construction Rates.
FOR TRIAL VERSIONS ONLY, THE FOLLOWING PARAGRAPH APPLIES:
If Construction Rates identifies a version of the Productivity Enhancing Solutions as a demonstration, evaluation, temporary or trial version (“Trial Version”), Customer and Users may access and use the Productivity Enhancing Solutions only for the purpose of evaluation and demonstration unless otherwise specified by Construction Rates in writing. Without limiting the foregoing, Customer and Users may not use Trial Versions for competitive analysis purposes. The Trial Version may only be accessed and used for a thirty (30) day trial period, unless otherwise specified by Construction Rates in writing.
NOTE: ALL REMAINING PROVISIONS OF THIS AGREEMENT APPLY TO ALL VERSIONS OF THE CONSTRUCTION RATES PRODUCTIVITY ENHANCING SOLUTIONS.
In order to utilize the Productivity Enhancing Solutions, Customer and/or User will be required to provide certain contact and account information as part of a registration process. Customer and each User (i) represents and warrants that all information submitted by it during the registration process is accurate and (ii) agrees to update this information to keep it accurate and complete during the term of this TOU.
Any software available for downloading from the Site (“Software”) shall be subject to the end user license agreement accompanying such Software.
4. ALL RIGHTS RESERVED; USE OF FEEDBACK.
Except as expressly provided otherwise in this TOU, title, ownership, and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights, in and to the Productivity Enhancing Solutions remain with Construction Rates and its licensors. Customer and/or User has only the limited access rights granted with respect to the Productivity Enhancing Solutions expressly set forth in this TOU, and Customer and/or User has no other rights, implied or otherwise. The structure, organization, and code of the Productivity Enhancing Solutions, if any, are valuable trade secrets of Construction Rates and its licensors, and Customer and/or User shall keep such trade secrets confidential. No logo, graphic, sound, content or image from the Productivity Enhancing Solutions may be copied or retransmitted unless expressly permitted by Construction Rates in a separate writing. Access rights to the Productivity Enhancing Solutions are licensed, not sold.
In the event Customer or any User provides Construction Rates with any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) relating to the Productivity Enhancing Solutions, Construction Rates shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to make, use, copy, modify, create derivative works of, and incorporate into the Productivity Enhancing Solutions such Feedback (and derivative works thereof); and to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Productivity Enhancing Solutions that incorporate such Feedback (and derivative works thereof). Customer and Users who provide Feedback warrant that such Feedback is not subject to any license terms that would purport to require Construction Rates to comply with any additional obligations with respect to any Construction Rates works that incorporate the Feedback. Feedback, even if designated as confidential by Customer and/or User, shall not create any confidentiality obligation for or upon Construction Rates.
5.1 – Use of the Construction Rates Daywork Mobile Application When using the Construction Rates Daywork Mobile Application, data is stored locally on the user’s device in their files accessible by the user. It is the sole responsibility of the user in all counts to protect their data. The Construction Rates Daywork Mobile Application does not store any user data in its file structures.
5.2 – Camera Usage by the Construction Rates Daywork Mobile Application The Construction Rates Daywork Mobile Application only accesses the camera and gallery in two counts. 1) When the user presses the add start image button and selects camera from the menu 2) When the user selects the add finish image button and selects selects camera from the menu. The user is aware of this and has given permission by selecting to allow camera permissions. In no other cases is the camera accessed.
5.3 – Sending Data through the Construction Rates Daywork Mobile Application When the user elects to send an email through the Construction Rates Daywork Mobile Application they are accepting responsibility that their chosen method of email is secure and has integrity. This is not part of the Construction Rates Daywork Mobile Application and data transferred via any medium is not the responsibility of Construction Rates and is the sole responsibility of the email service provider and the end user.
6. ACCEPTABLE USE.
Customer and Users agree not to use the Productivity Enhancing Solutions, or any portion thereof, to: (a) upload, post or otherwise transmit any Content (as defined below in Section 7) which violates, misappropriates, or infringes, in any way, upon the rights of others, which is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, obscene, libellous, invasive of another's privacy, hateful, violent, or racially, ethnically or otherwise objectionable, or which encourages conduct that would constitute a criminal offense, or otherwise violate any law or regulation; (b) access information related to minors or harm minors in any way; (c) impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s or User’s affiliation with any person or entity; (d) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (e) upload, post, or otherwise transmit any material which contains software viruses, harmful materials, or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including, but not limited to, the Productivity Enhancing Solutions; (f) interfere with or disrupt the Productivity Enhancing Solutions, or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or associated with the Productivity Enhancing Solutions; (g) "stalk", otherwise harass or disparage any person or entity, including, but not limited to, Construction Rates; (h) collect or store confidential or sensitive information, or personal data about any person or entity, without the requisite rights to do so; or (i) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals.
If Construction Rates is made aware of Content or Customer or User conduct that is, or that Construction Rates believes in good faith may be, a violation or potential violation of this Section 6, Construction Rates has the right, but not the obligation, to immediately remove or disable access to that Content and/or terminate Customer’s and/or User’s ability to access the Productivity Enhancing Solutions without notice to the Customer or User. Construction Rates may disclose, in its sole discretion, Content or registration information in order to cooperate with any law enforcement authorities or court order.
7. LICENSE BY CUSTOMER AND USERS.
Customer warrants that it has the requisite rights to submit, post, reproduce, publish, distribute, or otherwise transmit all data, material, information and media submitted or uploaded by Customer or User on or through the Site (“Content”). Construction Rates acknowledges that it does not own the Content that Customer or User submits to the Site in connection with the Productivity Enhancing Solutions.
By submitting, posting, or otherwise making Content available to Construction Rates, or available to any individual or entity on or through the Site, each of Customer and User hereby grants Construction Rates a non-exclusive, royalty free, paid up, worldwide, sub-licensable license to store, display, reproduce, modify and transmit the Content solely for the purposes of formatting, maintenance, repair, protection, organization, or other administration of the Site and Productivity Enhancing Solutions and use such Content in the ordinary course of Construction Rates’s, or its designated third parties’, provision of the Productivity Enhancing Solutions.
8. CONTENT: GENERAL.
As between Construction Rates and Customer, Customer is solely responsible for all Content and all activities that occur on the Site under Customer’s User accounts, including, without limitation any comments, information, questions, data, plans, ideas, descriptions of processes, or other information submitted, posted, reproduced, published, distributed, or otherwise transmitted to Construction Rates by Customer or any User through the Site or Productivity Enhancing Solutions. Customer may use the Productivity Enhancing Solutions for lawful purposes only.
Customer is responsible for implementing sufficient procedures and checkpoints to satisfy Customer’s particular requirements for accuracy of data input and output. Customer acknowledges that: (i) Customer will evaluate and bear all risks associated with the use of any Content, including any reliance by Customer or its Users on the accuracy, completeness, or usefulness of such Content; and (ii) under no circumstances will Construction Rates be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damages or any kind incurred as a result of Customer’s or any User’s use, deletion, modification, or correction of any Content.
9. PROTECTION OF CONTENT
During the term of this TOU, Construction Rates will use commercially reasonable standards and practices to back up and protect Content. Notwithstanding the foregoing, Construction Rates makes no warranties or representations regarding its back-up practices, and does not warrant that it will be able to restore any lost or damaged Content or other data. Customer acknowledges that no network security procedures can assure complete network security or prevent all unauthorized access to the Site and will immediately notify Construction Rates of any known security breaches affecting the Productivity Enhancing Solutions.
10.1 Confidential Information. As used in this TOU, confidential information shall mean (a) any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or designated as “confidential” or “proprietary” at the time of disclosure; (b) the Productivity Enhancing Solutions, (c) information related to access to the Site, including Customer’s registration information and account passwords, and (d) information related to Construction Rates’s business or operations, product plans or product prices (collectively “Confidential Information”).
10.2 Limitations on Disclosure and Use of Confidential Information. Receiving Party shall exercise the same degree of care employed by such party to prevent the unauthorized disclosure of its own Confidential Information, but in no event employing less than reasonable care. Confidential Information disclosed under this TOU shall only be used by Receiving Party in the furtherance of this TOU or the performance of its obligations hereunder. Customer shall not disclose the terms of this TOU to any third party without the prior written consent of Construction Rates, except pursuant to a valid and enforceable order of a court or government agency. Notwithstanding the foregoing, nothing herein shall limit Construction Rates’s right to disclose its standard and other Construction Rates Confidential Information to third parties.
10.3 Exceptions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party free of any obligation of confidence, as shown by Recipient’s written records; or (iii) was rightfully disclosed to the Receiving Party by another person without restriction as to use or disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information as shown by Receiving Party’s written records.
10.4 Independent Development. Receiving Party reserves the right to independently develop and market any technology, products or services or pursue business opportunities that compete with or are similar to those disclosed by Disclosing Party under this TOU without the use of the Disclosing Party’s Confidential Information.
11. CONSTRUCTION RATES LIMITED WARRANTY AND DISCLAIMER.
11.1 (i) Construction Rates warrants to Customer that, as of the Effective Date and for a period of sixty (60) days thereafter, the Site will provide substantially the features and functions described in the feature list documentation located at (as applicable) for the Product/Service for which access rights were purchased by Customer under normal use and circumstances. Construction Rates's entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is, at Construction Rates's sole option, to attempt to correct or work around errors, or to refund the license fees actually paid by Customer and terminate this TOU. Customer must notify Construction Rates of any claim under the warranty set forth in this Section 11.1(i) within thirty (30) days of occurrence of the event giving rise to such claim.
(ii) Construction Rates warrants to Customer that the Customer Support Services will be performed in a manner consistent with the applicable descriptions of such services referenced in Section 16. Construction Rates’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is for Construction Rates to use commercially reasonable efforts to correct or re-perform the non-conforming Customer Support Services in accordance with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. Customer must notify Construction Rates of any claim under the warranty set forth in this Section 11.1(ii) within thirty (30) days of occurrence of the event giving rise to such claim.
(iii) Customer hereby acknowledges and agrees that the products and services described in this TOU, including all related information and data proffered, are provided solely for Customer’s and Users’ internal use. Customer further acknowledges and agrees that the Productivity Enhancing Solutions and Software, if applicable, form part of Customer’s total unique hardware and software environment to deliver specific functionality, and all or any part of the Productivity Enhancing Solutions and Software may not achieve the results Customer desires within Customer’s design constraints. Customer acknowledges and agrees that it bears sole responsibility for determining whether the Construction Rates products and services are suitable for use in Customer’s intended application.
11.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 11.1 HEREOF OR IN THE END USER LICENSE AGREEMENT THAT ACCOMPANIES ANY APPLICABLE SOFTWARE, THE SOFTWARE AND PRODUCTIVITY ENHANCING SOLUTIONS ARE PROVIDED "AS IS" AND CONSTRUCTION RATES AND ITS SUPPLIERS MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (i) REGARDING THE USABILITY, SUITABILITY, CONDITION, OPERATION OR ACCURACY OF THE SOFTWARE AND/OR PRODUCTIVITY ENHANCING SOLUTIONS, OR (ii) THAT ACCESS TO OR USE OF THE CONTENT, SOFTWARE AND/OR PRODUCTIVITY ENHANCING SOLUTIONS WILL BE AVAILABLE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (iii) THAT THE SOFTWARE AND/OR PRODUCTIVITY ENHANCING SOLUTIONS WILL DELIVER CUSTOMER’S DESIRED RESULTS OR MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR (iv) THAT THE CONTENT, SOFTWARE AND/ OR PRODUCTIVITY ENHANCING SOLUTIONS WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 11.1 OR IN THE END USER LICENSE AGREEMENT THAT ACCOMPANIES ANY APPLICABLE SOFTWARE, CONSTRUCTION RATES AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. CUSTOMER'S AND USERS’ USE OF THE CONTENT, SOFTWARE AND/OR PRODUCTIVITY ENHANCING SOLUTIONS IS AT ITS OWN RISK, AND CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE OF OR INABILITY TO USE THE CONTENT, SOFTWARE, AND/OR PRODUCTIVITY ENHANCING SOLUTIONS.
12. LIMITATION OF LIABILITY.
CONSTRUCTION RATES’S AND ITS SUPPLIERS’ ENTIRE CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE PRODUCTIVITY ENHANCING SOLUTIONS, THE SOFTWARE, AND THE CONTENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES FULLY PAID BY CUSTOMER EQUAL TO THE VALUE OF SERVICES PROVIDED BY CONSTRUCTION RATES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.
IN ADDITION, IN NO EVENT SHALL CONSTRUCTION RATES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUE OR DATA, OR COST OF COVER ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE PRODUCTIVITY ENHANCING SOLUTIONS, THE SOFTWARE OR THE CONTENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 12 SHALL APPLY TO ALL DAMAGES, CLAIMS AND LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT (INCLUDING, BUT NOT LIMITED TO, WARRANTY OR INDEMNIFICATION CLAIMS), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF CONSTRUCTION RATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
13. TERM, SUSPENSION AND TERMINATION.
The TOU takes effect on the start date specified in the Order Form (the “Effective Date”), and shall continue until the end date specified in the Order Form, or, if earlier, the date on which this TOU is terminated in accordance with the terms set forth herein (the “Term”). This TOU may be renewed by mutual agreement of Customer and Construction Rates if, prior to the end of the then-current Term, Customer places an applicable valid Order Form for such renewal Term and Customer is current in all payments due hereunder.
For Trial Versions of the Productivity Enhancing Solutions, Construction Rates may suspend or terminate this TOU and/or Customer’s and Users’ access to the Productivity Enhancing Solutions in its sole discretion at any time without notice. For all other versions of the Productivity Enhancing Solutions, and without limiting any other rights or remedies available to Construction Rates under contract or otherwise, Construction Rates may (i) suspend Customer’s and Users’ access to the Productivity Enhancing Solutions effective upon ten (10) days prior notice in the event that Customer is not current in its payments and (ii) terminate the TOU upon thirty (30) days prior notice for any breach of or failure by Customer or any User to comply with the provisions of this TOU, including, without limitation, its payment obligations hereunder. Construction Rates may terminate the TOU, without penalty or further obligation, for any reason upon one hundred eighty (180) days prior written notice to Customer.
14. EFFECT OF TERMINATION/EXPIRATION.
Upon receipt of notice from Construction Rates that this TOU and/or Customer’s and Users’ access to the Productivity Enhancing Solutions are being terminated, or upon expiration of this TOU or expiration or termination of any free or evaluation period, Customer shall remove all Content and data from the Productivity Enhancing Solutions. Customer acknowledges and agrees that Construction Rates also will delete the Content and data from the Productivity Enhancing Solutions (and all backups thereof), without further notice thirty (30) days from the date of termination or expiration of this TOU, and that Construction Rates is not liable for any loss or damage which may be incurred by Customer, Users or any third parties as a result of such deletion.
Upon termination or expiration of this TOU for any reason, Customer shall cease to access the Productivity Enhancing Solutions and all of Customer’s and each User’s rights hereunder shall cease. Construction Rates may in its sole discretion make mutually agreed upon Content migration services available to Customer pursuant to a mutually agreed upon professional services agreement at Construction Rates’s then current fees.
Should Construction Rates elect termination for any reason other than Customer’s default, Customer shall only be liable for a pro rata payment for those Productivity Enhancing Solutions delivered to Customer prior to the effective date of termination. In the event that Customer has pre-paid any amounts under this agreement, Customer shall be entitled to a pro rata refund of such amounts for unused services. Termination is in addition to all other legal or equitable remedies available to Construction Rates. Sections 4 (All Rights Reserved; Use of Feedback), 7 (License by Customers and Users), 8 (Content: General), 9 (Protection of Content), 10 (Confidentiality), 11.2 (Disclaimer of Warranties), 12 (Limitation of Liability), 14 (Effect of Termination/Expiration), 15 (Indemnity), 17 (Entire Agreement), 18.4 (Governing Law, Jurisdiction and Venue), 18,6 (Notices), and 18.7 (Publicity) shall survive any termination of this TOU.
Customer agrees to indemnify, defend (at Construction Rates’s request) and hold harmless Construction Rates and its officers, directors, owners, agents, employees and suppliers (collectively, the "Construction Rates Indemnified Parties") from all damages, losses, liability, costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Construction Rates Indemnified Parties in connection with any third party claim against an Construction Rates Indemnified Party arising out of or related to any claim that the Content or Customer’s or Users’ use of the Productivity Enhancing Solutions violates any applicable law, rule, regulation or the rights of any third party. Customer shall have the right to conduct the defence of any such claim, provided, however, that Construction Rates shall have the right, at its own expense, to participate in the defence of any matter subject to indemnification hereunder, or to assume the defence and control of such matter is Customer fails to do so, and Customer shall not settle any such claim without the prior written consent of Construction Rates unless the settlement unconditionally releases Construction Rates of any and all liability.
16. CUSTOMER SUPPORT SERVICES.
Customer Support Services provided by Construction Rates to Customer may be subject to additional terms and conditions, which are or will be incorporated by reference into this TOU. Descriptions of Customer Support Services and additional terms relating to such services (as applicable) are currently available for review on the following Web pages (or any successor or replacement Web pages designated by Construction Rates):
17. ENTIRE AGREEMENT.
This document (including the documents incorporated by reference herein) contains the entire agreement and understanding between Customer or User and Construction Rates concerning the subject matter of this TOU, and supersedes all other prior or contemporaneous communications, representations, advertising, discussions and or negotiations, proposed agreements and all other agreements, whether written or oral for the Productivity Enhancing Solutions. Construction Rates has not made and Customer has not relied upon any representations not expressly set forth in this document in entering this TOU.
18. GENERAL PROVISIONS.
No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of or excuse of any other, different or subsequent breach. If and to the extent any provision of this TOU is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof, shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this TOU in any other jurisdiction.
18.2. Force Majeure.
Except for the failure to make payments, neither party will be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, war, terrorism or terrorist act, civil unrest, strikes, lockouts or other labor disturbances, failure or interruption of a third party internet connection(s) or infrastructure, or other causes beyond the non-performing party’s reasonable control and not caused by the negligence of the non-performing party.
18.3. Independent Contractor.
In performing their respective duties under this TOU, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither of the parties will hold itself out in any manner that would be contrary to the provisions of this Section 18.3.
18.4. Governing Law, Jurisdiction and Venue.
By accessing or using the Productivity Enhancing Solutions, Customer agrees that the statutes and laws of the State of California, without regard to the conflicts of laws principles thereof, shall govern all matters relating to interpretation and enforcement of these TOU and to Customer’s and User’s access to, or use of, the Productivity Enhancing Solutions. Customer and Construction Rates specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. No choice of law rules of any jurisdiction apply. The parties hereby submit to the exclusive personal jurisdiction of and venue in the Superior Court of the State of California, County of Marin or County of Santa Clara, and the United States District Court for the Northern District of California in San Francisco in respect of all claims arising out of or related to the Productivity Enhancing Solutions and the TOU. The TOU is void where prohibited by law, and the right to access the Productivity Enhancing Solutions is hereby revoked in such jurisdictions.
In conformity with laws and regulations of the United States and other countries relating to international trade, Customer and its employees, agents and Users agree that it will not (a) disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof) provided under this TOU to any country, entity, or other party which is ineligible to receive such items under applicable export control laws and regulations, or (b) use the Productivity Enhancing Solutions for any prohibited nuclear, rocket system or unmanned air vehicle end-use. Customer shall be solely responsible for complying with these laws and regulations.
Notices to Construction Rates under the TOU shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to: Construction Rates, Inc., Attention: General Counsel, 111 McInnis Parkway, San Rafael, California 94903.
Neither party may make any public statement, press release, or other public announcement relating to the terms of the TOU or any relationship between the parties, without the prior written approval of the other party, except as required by law.
The TOU is in the English language only, which language shall be controlling in all respects, and all versions hereof, in any other language, shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to the TOU shall be in the English language only. Les parties aux présentes confirment leur volonté à ce que cette entente ainsi que tous les documents, y compris tous avis qui sy rattachent, soient rédigés en anglais.
The Productivity Enhancing Solutions may contain links to third-party Web sites or services that are not under the control of Construction Rates. When Customer and/or Users access a non-Construction Rates Web site or non-Construction Rates services, Customer and/or Users do so at its own risk and Construction Rates is not responsible for the accuracy or reliability of any information, data, opinions, advice, or statements made on these Web sites; or for the quality of any products or services available on such Web sites; or any such third-party services or for any damage or loss caused or alleged to be caused through or in connection with use of or reliance on the content, goods, or services available on or through any such link, site, service or resource. Customer and/or Users may use third-party applications to access Productivity Enhancing Solutions via published API’s and protocols, but Customer and/or Users are solely responsible for such use.
Customer agrees that its rights and obligations under this TOU may not be transferred or assigned and its duties may not be delegated directly or indirectly without the prior written consent of Construction Rates in its sole discretion. Construction Rates may assign or otherwise transfer its rights and obligations to successors-in-interest (whether by purchase of stock or assets, merger, operation of law, or otherwise) of that portion of its business related to the subject matter hereof. Any attempted assignment in violation of this Section 18.10 shall be a material breach of this TOU and shall be void. Subject to the restrictions set forth in this Section 18.10, all of the terms and conditions of this TOU shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties hereto.
18.11. Copyright Act.
This is pursuant to the Copyright, Designs and Patents Act 1988.