This site (the "Site") is operated by The Works in Progress and its affiliates
(collectively, "Works in Progress " or "WIP"). By accessing or using
this Site (or any part thereof), you agree to be legally bound by the
terms and conditions that follow (the "Terms of Use") as we may modify
them from time to time. These Terms of Use apply to your use of this Site,
including the Works in Progress™ services offered via the Site. They
constitute a legal contract between you and Works in Progress, and by
accessing or using any part of the Site you represent and warrant that you
have the right, power and authority to agree to and be bound by these
Terms of Use. If you do not agree to the Terms of Use, or if you do not
have the right, power, and authority to agree to and be bound by these
Terms of Use, you may not use the Site. Notwithstanding anything to the
contrary herein, if you and Works in Progress have entered into a
separate written agreement that covers your use of a Works in Progress
service, the terms and conditions of such agreement shall control with
respect to such service to the extent they are inconsistent with these
Terms of Use.
Purpose of Site
The Site is designed to provide information
about construction opportunities, bids and related data. The information
and services offered on or through this Site are provided solely for
general business information, do not constitute agreements, acceptance of
bids, legal, or any other professional advice, or an offer to purchase,
sell or lease real estate, and may not be used for personal, family or
household purposes.
Services
The information, data, text, documents, plans, software, photographs,
images, graphics, organization, layout, design, and other content
contained on or provided through this Site (collectively, the "Content")
are proprietary to Works in Progress and its licensors, and are
protected by copyright and other U.S. and international intellectual
property rights, laws and treaties. The Content includes proprietary
databases (the "Database") of construction data and related information,
which, by way of example, include information, text, photographic and
other documents and data contained therein (collectively, the
"Information") and the proprietary organization and structures for
categorizing, sorting and displaying such Information, and the related
software ("Software"). The Site, Content, Database, Information, Software
and any portion of the foregoing, including any derivatives, successors,
updates or modifications provided thereto and any information derived from
the use of the Database, including as a result of the verification of any
portion of the Information, are collectively referred to herein as the
"Product".
Those portions of the Product that may be accessed by
the general public and that do not require any use of Passcodes (as
defined below) are referred to as the "Non-Passcode Protected Product".
Those portions of the Product that require use of Passcodes for access and
are available only to individuals or entities ("Works in Progress
Clients"), or those acting through them, who enter into a License
Agreement (as defined below) with Works in Progress that authorizes
access to such Works in Progress data and content are referred to as
the "Passcode Protected Product".
The Passcode Protected Product
includes, for example, the Works in Progress Project Database services.
A "License Agreement" is defined as either (i) a written hand-signed
contract between a Works in Progress Client and Works in Progress
that authorizes access to a Works in Progress service, or (ii) an
online contract between the Works in Progress Client and Works in Progress that is formed by online registration and acceptance of these
Terms of Use and that authorizes access to a Works in Progress
service.
Only Authorized Users for a
Passcode Protected Product may access such product and they may access it
solely using the user name, password (collectively, the "Passcodes")
assigned to such user by Works in Progress. No Authorized User may share
his/her Passcodes with any other person, nor may an Authorized User allow
any other person to use or have access to his/her Passcodes. An Authorized
User is defined as an individual (a) employed by a Works in Progress
Client or an Independent Contractor (as defined below) of a Works in
Progress Client at a site identified in the License Agreement, and (b) who
is specified in the License Agreement as a user of a specific
Passcode-Protected Product. An "Independent Contractor" is defined as an
individual person working solely for the Works in Progress Client and not
another company with construction information needs and performing
substantially the same services for such Works in Progress Client as an
employee of such Works in Progress Client.
Except to the extent specifically authorized in writing by Works in Progress
, you cannot share or sell the Works in Progress Materials and
you are responsible to Works in Progress for any use of it. You agree
and warrant that: a) you will not provide access to any portion of the
Works in Progress Materials to any unauthorized party without the prior
written consent of Works in Progress; b) you shall use your best
efforts to prevent the misuse and unauthorized use of the Works in Progress Materials; c) you will not use any Works in Progress Materials
for consumer credit purposes, consumer insurance underwriting, employment
purposes, tenant screening purposes, or for any other purpose(s) covered
by the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) or any
similar statute or regulation; c) you shall not name Works in Progress
or its affiliated companies or refer to the use of Works in Progress
Materials in any advertisements, promotional or marketing material; and d)
you shall indemnify and hold harmless Works in Progress, its affiliated
companies and their respective officers, employees and agents
("Indemnified Parties") against any loss, liability, damage, cost or
expense (including, but not limited to, reasonable attorneys' fees and
legal costs) suffered or incurred by any Indemnified Party, arising out of
or in any way related to your use of the Works in Progress Materials or
the breach of this Agreement.
Free Trial Access
From time to
time, in Works in Progress’s sole discretion, Works in Progress may offer
a free trial period ("Free Trial Access") to certain individuals ("Free
Trial Access Participant") chosen by Works in Progress to participate in
the free trial access. Unless terminated sooner by Works in Progress, the
Free Trial Access shall last for the length of time specified in the email
from Works in Progress that distributes Passcodes to the Free Trial Access
Participant. The terms set forth in that email, combined with these Terms
of Use, shall constitute a License Agreement between Works in Progress and
the Free Trial Access Participant relating to such individual's access to
and use of the associated Passcode Protected Product being offered through
the Free Access Trial. During the Free Trial Access the Free Trial Access
Participant shall be considered an Authorized User and a Works in Progress
Client (as defined in these Terms of Use) and may use the Passcode
Protected Product during the Free Trial Access subject to and solely in
accordance with the terms outlined in such License Agreement relating to
the Free Trial Access (which includes these Terms of Use).
Permitted Uses
Subject to the provisions in these Terms of Use, you may use the
Non-Passcode Protected Product (or, if you are an Authorized User, subject
to the provisions in your License Agreement and these Terms of Use, you
may use the applicable Passcode-Protected Product), in the ordinary course
of your business for:
(1) Your internal research
purposes;
(2) Marketing opportunities;
(3) Download plans,
specifications and related documents; and
(4) Creating periodic
general market research reports for in-house use, provided that such
reports are not commercially or generally distributed.
Subject to
the provisions in your License Agreement and these Terms of Use, you may
print Information or copy Information into word processing, spreadsheet
and presentation programs (or other software programs with the express
written consent of Works in Progress), so long as the level of
Information being printed or copied is reasonably tailored for your
purposes, insubstantial and used in compliance with these use and copying
provisions.
Notwithstanding the foregoing, the Information you
access through the "Project Database" feature on this Site may only be
viewed by you for your individual, non-commercial use while visiting this
Site.
Prohibited Uses
You shall not, except as may be expressly set forth above under
"Permitted Uses", (a) distribute, disclose, copy, reproduce, display,
publish, transmit, assign, sublicense, transfer, provide access to, use or
sell, directly or indirectly (including in electronic form) any portion of
the Product, or (b) modify or create derivative works of any portion of
the Product.
Notwithstanding anything to the contrary herein, you
shall not:
(1) Access any portion of a Passcode-Protected Product
unless you are an Authorized User for such Passcode-Protected Product
using the Passcodes assigned to you by Works in Progress to access the
components and services of the Passcode-Protected Product that your
License Agreement authorizes you to access, subject to the terms contained
therein and in these Terms of Use;
(2) Access or use any portion of
the Product if you are a direct or indirect competitor of Works in Progress, nor shall you provide, disclose or transmit any portion of the
Product to any direct or indirect competitor of Works in Progress (by
way of example, a "direct or indirect competitor" of Works in Progress
includes, but is not limited to, construction opportunity and construction
bidding services or other construction plans and construction data
services and employees, independent contractors and agents of such
services);
(3) Use or distribute any Information from the Product,
including Information that has been verified or confirmed by you or anyone
else, to directly or indirectly create or contribute to the development of
any database or product;
(4) Modify, merge, decompile, disassemble,
translate, decode or reverse engineer any portion of the Product, or use
any data mining, gathering or extraction tool, or any robot, spider or
other automatic device or manual process, to monitor or copy any portion
of the Product;
(5) Use, reproduce, publish or compile any portion
of the Product for the purpose of selling or licensing any portion of the
Product or making any portion of the Product publicly
available;
(6) Store, copy or export any portion of the Product
into any database or other software, except as expressly set forth in the
Permitted Uses above;
(7) Upload, post or otherwise publish any
portion of the Product on, or provide access to any portion of the Product
through, the Internet, any bulletin board system, any other electronic
network, any data library, any listing service or any other data sharing
arrangement, except that you may e-mail a report containing Information
that complies with the Permitted Use provisions set forth above to a
limited number of your clients and prospective clients;
(8) Upload, post, e-mail or
otherwise transmit any information, data, text, software, photographs,
images, graphics, or other content to or through the Product, or use any
portion of this Product in a manner, that:
- is
unlawful, threatening, abusive, harmful, libelous, tortious,
defamatory, false, misleading, obscene, vulgar, racially or ethnically
offensive or otherwise objectionable;
- infringes any patent, copyright, trademark, trade
secret, or other proprietary right of any party or violates the
privacy or publicity rights of any party;
- constitutes unlawful advertising or
fraudulent, unfair or deceptive practices, "spam," or any other form
of unlawful solicitation
- contains software
viruses or any other computer code, files or programs that are
designed to or have the capability to interrupt, modify, damage,
improperly access, disable, destroy or limit the functionality of the
Product or servers or networks connected thereto or the activities of
other users of the Product or of any computer software or hardware or
telecommunications equipment; or
- you
do not have a right to transmit under any law, contractual obligation
(i.e., nondisclosure agreement) or fiduciary
duty;
(9) Impersonate any person or entity, or falsely state or otherwise
misrepresent any registration information, or otherwise disguise the
origin of any information, data, text, software, photographs, images,
graphics, or other content posted on or transmitted through the Product;
and
(10) Use any portion of the Product to encourage or engage in
illegal activity, stalk or harass another person, or violate these Terms
of Use or any applicable local, state, national or international law,
rule, regulation or ordinance, including without limitation, state and
local real estate practice, spam or privacy laws.
Compliance Monitoring and Enforcement
It is an express condition of this
Agreement that in using the Works in Progress Materials: a) you and any
authorized users shall fully comply with the terms of this Agreement and
all applicable federal, state, foreign and local statutes and regulations,
including, but not limited to, laws and regulations regarding
telemarketing, email, fax marketing, customer solicitation and privacy;
and b) that you and any authorized users shall comply with all applicable
Direct Marketing Association ("DMA") guidelines, if you or your authorized
users are DMA members. If you or your authorized users are not DMA
members, you and your authorized users are encouraged to comply with all
applicable DMA guidelines. Works in Progress further reserves the right
to review materials to be used by you in promotions to ensure that your
use of the Works in Progress Materials is both appropriate and in
accordance with the permitted uses of the Works in Progress Materials;
however, Works in Progress's failure to review any such materials shall
not constitute Works in Progress's acceptance of the materials or in
any other way waive any rights Works in Progress may have or limit any
obligations you may have with regard to the use of the Works in Progress Materials. Works in Progress may also randomly monitor (through
seeding and other means) your use of the Works in Progress Materials to
ensure that your use is in accordance with the permitted uses of the
Works in Progress Materials.
Fees
You are responsible for the timely payment of any fees incurred by your
use of components and services available on the Site or via links to other
web sites, and all taxes applicable to your use of the Product. Customer
loses the right to access service while in default of payment and/or
terms; as customer achieves good standing, all lost time will be
forfeited.
WE
RESERVE THE RIGHT, AT ANY TIME AND FROM TIME TO TIME, TO PROSPECTIVELY CHANGE THE NATURE AND AMOUNT OF
FEES CHARGED FOR ACCESS TO THE PRODUCT INCLUDING RATE INCREASES OR DECREASES
AFTER INITIAL TERM OR ANY OF THE COMPONENTS OR SERVICES AVAILABLE ON THE
PRODUCT, AND THE MANNER IN WHICH SUCH FEES ARE ASSESSED.
If
you are accessing the Passcode Protected Product, you agree: (1) to
provide Works in Progress with accurate and complete registration and
billing information and to promptly update such information in the event
it changes; and (2) to pay any applicable license fees or other fees
incurred by your use of the Passcode-Protected Product; and (3)
product features and additional licensed users may be added or removed
during the subscription term and may result in increased or decreased
fees.
Termination
You acknowledge and agree that Works in Progress may interrupt or
terminate or block your access to the Product or portions thereof at any
time. In the event that occurs, you shall cease using any portion of the
Product, permanently delete or destroy all portions of the Product within
your possession, custody or control, and, upon written request from
Works in Progress, certify, in writing, your compliance with this
provision.
If you are a Works in Progress Client, your License
Agreement sets forth an initial term that expires on a specified date and
that may automatically renew for a specified length. Following termination
or non-renewal of your License Agreement, you shall cease using any
portion of the Product. In addition, you shall permanently delete or
destroy all portions of the Product within your possession, custody or
control and, upon written request from Works in Progress, certify, in
writing, your compliance with this provision.
All Works in Progress Clients with a Service Agreement, your
agreement will automatically renew for the same period at the end of the
initial term. Licensee may terminate their Agreement at any time after the
initial term for any reason with thirty (30) days notice. Following
termination or non-renewal of your License Agreement, you shall cease
using any portion of the Product. In addition, you shall permanently
delete or destroy all portions of the Product within your possession,
custody or control and, upon written request from Works in Progress,
certify, in writing, your compliance with this provision.
Either Subscriber or Works in Progress may terminate the Service
with or without cause at any time and become effective that same day
notification is received by the other party. Termination shall be by
written notice to the other party. Works in Progress shall not be
liable to Subscriber or any third party for termination of Service.
Subscriber shall be responsible for payment for use of the service through
the end of the subscription date. NO SUBSCRIPTION REFUNDS WILL BE GIVEN.
Subscribers with prepaid subscription periods may terminate their
subscription prior to their subscription end date without refund.
Submitted Content
This Product may include opportunities for users to submit information,
data, text, photographs, images, graphics, construction documents and
other content to the Product, for it to be publicly displayed on the
Product, used by Works in Progress in connection with researching
construction information, or for some other purpose ("Submitted Content").
Works in Progress acknowledges that if you provide Works in Progress
with any information or images, then you retain any applicable ownership
rights that you may have with respect to such information and images.
However, you understand that all such Submitted Content, whether publicly
posted or privately transmitted, is the sole responsibility of the person
from which such content originated. This means that you, and not
Works in Progress, are entirely responsible for all such content that
you upload, post, e-mail or otherwise transmit to or via the Product.
Works in Progress is under no obligation to post or use any such
Submitted Content you may provide and may remove any such content at any
time in Works in Progress's sole discretion.
With respect to all
Submitted Content you elect to upload, post, e-mail or otherwise transmit
to or via the Product, you grant Works in Progress and its affiliates
and their licensees a royalty-free, perpetual, irrevocable, non-exclusive
and fully sub-licensable right and license (through multiple tiers) to
use, reproduce, adapt, perform, display, publish, translate, prepare
derivative works from, modify, distribute, sell, and take any other action
with respect to such content (in whole or part) worldwide and/or to
incorporate it in other works in any form, media, or technology now known
or later developed. You further acknowledge and agree that Works in Progress may preserve any such content and may also disclose such content
in its discretion.
You represent and warrant that (a) you own or have the
full right, power and authority to grant to Works in Progress use of and
rights in and to all Submitted Content that you upload, post, e-mail or
otherwise transmit to or via the Product; (b) your license of such content
to Works in Progress hereunder does not, and the use or license of such
content by Works in Progress to third parties will not, infringe any right
or interest owned or possessed by any third party; and (c) there are no
claims, judgments or settlements to be paid by you, or pending claims or
litigation, relating to such content.
Information about You
When you use the Product, Works in Progress collects both personally
and non-personally identifying information about you and your use of the
Product. Such information includes (a) what you intentionally submit to us
while using the Product, including, for example, by filling out forms with
your contact information or by logging in with your UserID and Password,
and (b) information that may be collected automatically while you use the
Product, including, for example, your IP address, your IP host, session
duration, and "click stream" data that tracks user activity in the
Product.
We generally use or disclose the information we collect
through the Product to conduct research on and to improve the Product, to
perform customer service and support, to fulfill your requests for
services, and to provide you with information regarding our services,
including service-related announcements.
In some but not all
circumstances, at the time you submit personally identifiable information,
we may provide you with the opportunity to "opt out" of some uses or
disclosures of personally identifiable information. In addition,
regardless of whether you exercise an opportunity to opt out, Works in Progress reserves the right to use or disclose the information we collect
whenever we have reason to believe that use or disclosure may be necessary
to identify possible violations of these Terms of Use or a separate
License Agreement, to identify, contact or bring legal action against
persons or entities who may be violating your rights, our rights or the
rights of others, or if we believe that we are required to do so to
respond to legal process or otherwise to comply with law. We also reserve
the right to use and disclose the information we collect to protect the
security of our software, products and services, web sites, users, and to
protect ourselves from liability or in connection with a merger,
acquisition or liquidation.
Works in Progress takes steps to
protect the security of the personally identifiable information we
collect, including, for example, physical, electronic, and procedural
safeguards.
Although the Product can technically be viewed by
children, we do not knowingly request personally identifiable information
from them nor does the Product publish content that is targeted to
children. No information should be submitted to, or posted at, the Product
by visitors under 18 years of age.
If you have a further
question, please notify us by e-mail at webmaster@wipbids.com. We will do
our best to look into your request and respond promptly.
Links; Framing
You may provide a hyperlink to the home page of this Site, which is http://www.worksinprogress.com, provided that you must remove any such link upon request from Works in Progress. Except as
set forth in the preceding sentence, or as otherwise authorized by Works
in Progress in writing, links to and the framing of this Product or any of
its Content is prohibited. The Product may include links to other sites,
some of them operated by Works in Progress and some of them operated by
third parties. Under no circumstances shall Works in Progress be deemed to
be associated or affiliated with, or viewed as endorsing or sponsoring,
any web site that links to this Site, or is linked to from this Site, or
any services that may be offered through such web sites. Works in Progress
has not necessarily reviewed any or all of the content of such other web
sites, and we disclaim responsibility for the content and services
available therein. Different terms and conditions may apply to your use of
any linked sites. It is your responsibility to review any such terms and
conditions in connection with your use of any such sites. Any issues or
disputes that may arise with respect to any such sites shall solely be
between you and the applicable third party.
Information Regarding Accuracy, Completeness and
Timeliness of Information in the Product
The Product is
provided for general information only and should not be relied upon or
used as the basis for making significant decisions without consulting
primary sources of information. Any reliance upon the Product shall be at
your own risk. Neither Works in Progress, nor any third party involved in
creating, producing or delivering the Product, is responsible if the
Product is not accurate, complete or current. Neither Works in Progress,
nor any third party involved in creating, producing or delivering the
Product, has any responsibility for any consequence relating directly or
indirectly to any action or inaction that you take based on the
Product.
No Warranties
ALTHOUGH Works in Progress MAKES EFFORTS TO PROVIDE AN ACCURATE
PRODUCT, THE PRODUCT AND ALL PARTS THEREOF ARE PROVIDED "AS IS", "WITH ALL
FAULTS", AND "AS AVAILABLE". Works in Progress AND ITS AFFILIATES AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND THIRD PARTY SUPPLIERS
(COLLECTIVELY, THE "Works in Progress") DISCLAIM ANY AND ALL
REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE,
MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, WORKMANLIKE
EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (2) THE QUALITY,
ACCURACY, TIMELINESS OR COMPLETENESS OF THE LICENSED PRODUCT, (3) THOSE
ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF
TRADE; (4) THE PRODUCT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR
PROMISE BY ANY Works in Progress PARTY, AND (5) THAT ACCESS TO OR USE
OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY
RELIANCE UPON THE PRODUCT IS AT YOUR OWN RISK AND THE Works in Progress
PARTIES MAKE NO WARRANTIES.
Works in Progress RESERVES THE RIGHT
TO RESTRICT OR TERMINATE YOUR ACCESS TO THE PRODUCT OR ANY FEATURE OR PART
THEROF AT ANY TIME. IF YOU DOWNLOAD ANY CONTENT FROM THIS PRODUCT, YOU DO
SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOAD OF ANY SUCH CONTENT.
THESE DISCLAIMERS
ARE INDEPENDENT OF ANY OTHER TERM IN THESE TERMS OF USE OR THE LICENSE
AGREEMENT.
Microsoft Virtual Earth Disclaimer/Terms of Use
The following
disclaimer also applies to any maps from Microsoft Virtual Earth ("Virtual
Earth") that are displayed in the Product: THESE MAPS ARE INFORMATIONAL
ONLY. NO REPRESENTATION IS MADE OR WARRANTY GIVEN AS TO THEIR CONTENT,
ROAD CONDITIONS OR ROUTE USABILITY OR EXPEDITIOUSNESS. USER ASSUMES ALL
RISK OF USE. VIRTUAL EARTH, Works in Progress, AND THEIR SUPPLIERS ASSUME
NO RESPONSIBILITY FOR ANY LOSS OR DELAY RESULTING FROM SUCH USE.
Additional information and terms governing use of any maps from Microsoft,
which are by reference hereby deemed a part of this Agreement, can be
found at http://www.microsoft.com/info/copyright.mspx
Limitation of Liability
YOU ACKNOWLEDGE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
Works in Progress PARTIES WILL NOT BE HELD LIABLE FOR ANY LOSS, COST OR
DAMAGE SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY ARISING OUT OF OR
RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE PRODUCT, OUT OF ANY
INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE
PRODUCT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS,
INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF
THE PRODUCT. IN ADDITION, IF YOU HAVE NOT PAID ANY FEES TO WORKS IN PROGRESS TO ACCESS THE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, NONE OF THE Works in Progress PARTIES SHALL BE LIABLE
FOR ANY DIRECT DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THE
PRODUCT, THESE TERMS OF USE, OR YOUR USE OR INABILITY TO USE ANY OF THE
FOREGOING. THESE LIMITATIONS OF LIABILITY INCLUDE DAMAGES FOR ERRORS,
OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, YOUR LOSS OF
PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF YOUR
TRANSMISSIONS AND DATA, AND OTHER TANGIBLE AND INTANGIBLE
LOSSES.
NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE
CONTRARY, IN NO EVENT WILL THE MAXIMUM AGGREGATE, CUMULATIVE LIABILITY OF
THE Works in Progress PARTIES FOR ANY AND ALL REASONS TO ANY PARTY FOR
DAMAGES, DIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE
PRODUCT, THESE TERMS OF USE, OR A SEPARATE LICENSE AGREEMENT EXCEED THE
TOTAL AMOUNT OF LICENSE FEES ACTUALLY PAID TO Works in Progress UNDER
THE RELEVANT LICENSE AGREEMENT BETWEEN THE RELEVANT Works in Progress
CLIENT AND Works in Progress DURING THE TWELVE MONTH PERIOD IMMEDIATELY
PRECEDING THE DATE SUCH CLAIM AROSE, REGARDLESS OF THE CAUSE OR FORM OF
ACTION. RECOVERY OF THIS AMOUNT SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR
THE Works in Progress CLIENT OR ANY OTHER PARTY FOR ANY APPLICABLE
DAMAGES.
UNDER NO CIRCUMSTANCES WILL ANY OF THE WORKS IN PROGRESS PARTIES BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF, BASED ON, OR RESULTING
FROM, OR IN CONNECTION WITH THE PRODUCT, THESE TERMS OF USE, OR YOUR USE
OR INABILITY TO USE ANY OF THE FOREGOING, EVEN IF Works in Progress HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION
OF DAMAGES IS INDEPENDENT OF THE EXCLUSIVE REMEDY DESCRIBED ABOVE AND
SURVIVES IN THE EVENT SUCH REMEDY FAILS.
NONE OF THE WORKS IN PROGRESS PARTIES SHALL HAVE ANY LIABILITY FOR ANY DAMAGES RESULTING FROM
ANY FAILURE TO PERFORM ANY OBLIGATION HEREUNDER OR FROM ANY DELAY IN THE
PERFORMANCE THEREOF DUE TO CAUSES BEYOND Works in Progress's CONTROL,
INCLUDING, WITHOUT LIMITATION, INDUSTRIAL DISPUTES, ACTS OF GOD OR
GOVERNMENT, PUBLIC ENEMY, WAR, FIRE, OTHER CASUALTY, FAILURE OF ANY LINK
OR CONNECTION WHETHER BY COMPUTER OR OTHERWISE, OR FAILURE OF TECHNOLOGY
OR TELECOMMUNICATIONS OR OTHER METHOD OR MEDIUM OF STORING OR TRANSMITTING
THE PRODUCT.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA
CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
ALL OF THESE
LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR FORM OF ACTION, WHETHER THE
DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT, TORT OR OTHERWISE, AND
EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION ARISING OUT OF OR PERTAINING
TO THESE TERMS OF USE MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE
CAUSE OF ACTION HAS ARISEN.
User Data
If you create any settings, fields or functions
in the Product or input, add or export any data into or from the Product
(collectively, the "User Data"), none of the Works in Progress Parties
shall have any liability or responsibility for any of such User Data,
including the loss, destruction or use by third parties of such User Data.
It is your responsibility to make back-up copies of such User
Data.
Your Liability
If you cause a technical disruption of the
Product, you agree to be responsible for any and all liabilities, costs
and expenses (including reasonable attorneys' fees and costs of
enforcement) arising from or related to that disruption. Upon your breach
of any term of these Terms of Use or a separate License Agreement, Works
in Progress's remedies shall include any damages and relief available at
law or in equity as well as interruption and/or termination of your access
to the Product or any portion thereof and permanent deletion or
destruction of all portions of the Product within your possession, custody
or control. If Works in Progress retains any third party to obtain any
remedy to which it is entitled under these Terms of Use or a separate
License Agreement, Works in Progress shall be entitled to recover all
costs, including attorney's fees or collection agency commissions, Works
in Progress incurs.
Indemnity
You agree to indemnify, defend, and hold
harmless the Works in Progress Parties from and against any third party
action, suit, claim or demand and any associated losses, expenses,
damages, costs and other liabilities (including reasonable attorneys'
fees), arising out of or relating to your (and your users') Submitted
Content, use or misuse of any portion of the Product, or your violation of
these Terms of Use or a separate License Agreement. You shall cooperate as
fully as reasonably required in the defense of any such claim or demand.
Works in Progress and any third party involved in creating, producing, or
delivering the Product reserves the right to assume the exclusive defense
and control of any matter otherwise subject to indemnification by you, at
your expense, and you shall not in any event settle any such matter
without the written consent of Works in Progress and any such third
party.
Cookies
Some areas of this Product use and require that your
computer accept "cookies." Cookies are small text files that are stored on
your computer to keep track of settings or data for a particular web site.
Cookies make it possible and easier for you to access and use certain
areas of this Product. If you have disabled cookies from within your
browser, or if you are running third-party software that intercepts or
deletes cookies, you may not be able to visit certain areas of the
Product.
Trademarks
The Product employs various trademarks and
service marks of Works in Progress and of other third parties. All of
these trademarks and service marks are the property of their respective
owners. You agree not to use or display them in any manner without the
prior written permission of the applicable trademark
owner.
Procedure for Making Notification of Claims of
Copyright Infringement
Works in Progress and its affiliates respect the
intellectual property of others, and we ask those submitting, posting or
transmitting any content to or through this Site to respect copyright law.
It is the policy of Works in Progress to restrict and/or terminate in
appropriate circumstances the ability to submit content and/or use this
Product by individuals or entities that repeatedly submit infringing
content in violation of these Terms of Use. If you believe that your work
has been copied and is available on this Site or our other online services
in a way that constitutes copyright infringement, you may notify Works in
Progress as follows: by mail to Legal Department (attn: General Counsel),
The Works in Progress, 759 SW Federal Highway; Suite 300 Stuart, FL 34994;
by e-mail to copyright@wipbids.com; and by telephone at (772)
781-2144.
Ownership
You acknowledge that Works in Progress and its
licensors have and shall retain exclusive ownership of all proprietary
rights in or to the Product, including all U.S. and international
intellectual property and other rights such as patents, trademarks,
copyrights and trade secrets. This is a license agreement and not an
agreement for sale. You shall have no right or interest in any portion of
the Product except the right to use the Product as set forth in these
Terms of Use and, if you are a Works in Progress Client, your License
Agreement. You acknowledge that the Software, Database, Content,
Information, Passcode-Protected Product, Non-Passcode-Protected Product,
and Product constitute the valuable property and confidential copyrighted
information of Works in Progress (collectively, the "Proprietary
Information"). You agree to (a) comply with all copyright, trademark,
trade secret, patent, contract and other laws necessary to protect all
rights in the Proprietary Information, (b) not challenge Works in
Progress's ownership of (or the validity or enforceability of their rights
in and to) the Proprietary Information, and (c) not remove, conceal,
obliterate or circumvent any copyright or other notice or license, use or
copying technological measure included in the Product. You shall be liable
for any violation of the provisions of these Terms of Use and, if
applicable, the License Agreement by your employees, Independent
Contractors, affiliates and agents and for any unauthorized use of the
Product by such persons.
NOTICE -- U.S. Government Rights/Commercial
Technical Data and Software Unpublished, Rights Reserved Under the
Copyright Laws of the United States
This Site contains commercial technical data
and computer software that have been privately developed and are normally
vended commercially under a license or lease agreement restricting their
use, disclosure and reproduction. In accordance with FAR 12.211, 12.212,
27.405(b)(2) and 52.227-19 and DFARS 227.7202, 227.7102 and 252.227-7015,
as well as other applicable supplemental agency regulations, use,
reproduction, disclosure and dissemination of this commercial technical
data and computer software are governed strictly in accordance with Works
in Progress's commercial license agreements, including these Terms of
Use.
Export Restrictions
This Site is
controlled and operated by Works in Progress from its offices within the
United States. Works in Progress makes no representation that any portion
of the Product or other material accessed through this Site is appropriate
or available for use in other locations, and access to them from other
countries where their contents are illegal is prohibited. Those who choose
to access the Product or the Site from other locations do so on their own
volition and are responsible for compliance with applicable local laws.
You may not export or re-export any portion of the Product except in full
compliance with all United States laws and regulations, this Terms of Use,
and, if applicable, the associated License Agreement. In particular, no
portion of the Product may be exported or re-exported into (or to a
national or resident of) any country to which the United States embargoes
goods, or to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Commerce Department's Table of Denial
Orders.
Jurisdiction
Works in Progress is headquartered in the State
of Florida of the United States. These Terms of Use and your use of this
Product shall be governed by the laws of the State of Florida without
regard to its conflicts of laws principles. The federal and state courts
located in the State of Florida shall be the exclusive jurisdiction for
any action brought against Works in Progress in connection with these
Terms of Use or use of the Product. You irrevocably consent to the
jurisdiction of the federal and state courts located in the State of
Florida, and to the jurisdiction of the federal and state courts located
in any State where you are located, for any action brought against you in
connection with these Terms of Use or use of the Product. If any material
in this Product, or your use of the Product, is contrary to the laws of
the place where you are when you access it, or if Works in Progress is not
licensed as required by applicable laws or regulations in such locale, the
Product is not intended for you, and we ask you not to use the Product.
You are responsible for informing yourself of, and complying with, the
laws of your jurisdiction.
Force Majeure
The Works in Progress is not
responsible for any delay, interruption or other failure to perform due to
acts beyond the control of the responsible party, but only for so long as
such conditions persist. Force majeure events include, but are not limited
to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods);
wars, riots, terrorist activities, and civil commotions; activities of
local exchange carriers, telephone carriers, Internet service providers,
and other third parties; explosions and fires; embargoes, strikes, and
labor disputes; governmental decrees; and any other cause beyond the
reasonable control of a party.
Modifications to Product; Changes to these Terms
Works in Progress is continuously updating and changing the Product, and reserves
the right at any time and from time to time to modify or discontinue,
temporarily or permanently, the Product (or any part thereof) with or
without notice. You agree that Works in Progress shall not be liable to
you or to any third party for any modification, suspension or
discontinuance of the Product (or any part thereof). Additionally, we
reserve the right, in our complete and sole discretion, to change these
Terms of Use at any time by posting revised terms on the Product. It is
your responsibility to check periodically for any changes we may make to
the Product and these Terms of Use. Your continued use of this Product
following the posting of changes to these terms or other policies means
you accept the changes.
Miscellaneous
These Terms of Use contain the entire understanding of the parties with
respect to the Product and supersede any prior oral or written statements
and documents with respect to such subject matter; provided, that these
Terms of Use do not supersede any written license agreement between the
parties. Your obligations hereunder are binding on your successors, legal
representatives and assigns. You may not assign or transfer (by operation
of law or otherwise) these Terms of Use or any portion hereunder, in whole
or in part, without the prior written consent of Works in Progress. In
the event any portion of these Terms of Use not being of a fundamental
nature is held to be invalid, illegal or unenforceable, such part shall be
deemed severed from these Terms of Use without invalidating the remaining
provisions of these Terms of Use or affecting the enforceability of such
remaining provisions. If a provision is held to be invalid, illegal or
otherwise unenforceable, it shall be deemed to be replaced with an
enforceable provision that retains the intent and benefits of the original
provision. No waiver by Works in Progress of any right under or term or
provision of these Terms of Use will be deemed a waiver of any other
right, term, or provision of these Terms of Use at that time or a waiver
of that or any other right, term, or provision of these Terms of Use at
any other time. These Terms of Use apply to your use of the Product and
not to any other areas, including, without limitation, Works in Progress's research activities. Headings are for reference only. All
notices to Works in Progress pertaining to these Terms of Use will be
in writing, mailed by registered or certified mail, return receipt
requested, or delivered by a well-recognized overnight U.S. or
international carrier, delivered to The Works in Progress 20 Farrell Street, South Burlington, VT 05403, Attention: General Counsel.