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User Terms and Agreement
THESE TERMS and AGREEMENT (this “Agreement”) AFFECT YOUR LEGAL RIGHTS AND RESPONSIBILITIES AND CREATE A LEGALLY BINDING CONTRACT BETWEEN YOUAND THEO TECHNOLOGY HOLDINGS LLC (“Provider”) and its subsidiaries. Please read these terms and agreement carefully. IF YOU DO NOT AGREE WITH THIS AGREEMENT YOU SHOULD NOT USE THE SITE OR THEO SERVICE. USE OF THE SITE CONSTITUTES ACCEPTANCE AND AGREEMENT. We recommend that You print and keep a copy of the agreement (and any other documents referred to in the agreement) for Your reference. The Agreement will be maintied by Provider at [www.theobuild.com/terms] and the Agreement may be amended from time tot time by Porvider by updating the Agreement, posting it at this site, and notifying the User by email. Continued use following receipt of such notice by email constitutes User’s acceptance and agreement to the amended Agreement. This Agreement was last updated on January 14, 2021. It is effective between Provider and Users as of the date Users accept this Agreement (the “Effective Date”).
1. Definitions.
a)“Account”means a license entitling the User to access the Provider’s Theo Service.
b)“Aggregated Statistics”means data and information related to User’s use of the Theo Service that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Theo Service.
c)“Authorized User”means User’s employees, consultants, contractors, and agents (i) who are authorized by User to access and use the Theo Service under the rights granted to User pursuant to this Agreement
d)“Documentation”means Provider’s user manuals, handbooks, and guides relating to the Theo Service provided by Provider to User either electronically or in hardcopy form.
e)“Provider IP”means the Theo Service, the Documentation, and any and all intellectual property provided to User or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Your access to or use of the Theo Service, but does not include UserData.
f)“Theo Service”means the website accessible at https://theobuild.comand all of the features and services that are available to users.
g)“Third-Party Products”means any third-party products provided with or incorporated into the Theo Service.
h)“User”or “Users”means anyone that accesses, uses, subscribes to and/or participates in the Theo Service in any manner. 2
i)“User Data”means the information, data, and other content contained in Theo Service, in any form or medium, that is entered and/or uploaded by Users into the Theo Service, including but not limited to text, documents and correspondence and Aggregated Statistics.
j)“We”, “Us”or “Our”, as applicable, means Theo Technology Holdings LLC.
k)“You”or “Your”, as applicable, means the User entering into an agreement for access to the Theo Service by clicking ‘Sign Up’, and if such registration is made on behalf of a business, means that business.
2. Access and Use. a)Registration.By clicking “Sign Up”:
(a)You acknowledge You are registering as a User with the Theo Service and agree to be bound by all terms and conditions of this Agreement;
(b)You consent to receiving certain electronic communications from Us regarding account information and services;
(c)You are warranting and representing that: (i) all information You submit into Theo Service is truthful and accurate and You will maintain the accuracy of such information;
(ii)You have the necessary licenses, rights, consents, and permissions to post, submit and publish User Data; and
(iii) if You use or access the Theo Service on behalf of a business, thatYou have the authority to bind that business and Your acceptance of the Agreement will be deemed an acceptance by that business, if User does not have such authority, the business shall be bound regardless. These representations and warranties will survive any termination or expiration of this Agreement or any deactivation of the Theo Service or Your access to the Theo Service.
b)Provision of Access. Registration will grant You access to the Theo Service and support from client service and technical support (if required). Subject to terms and conditions of thisAgreement, We hereby grant You a non-exclusive, non-transferable (except in compliance with Section 11
(e)right to access and use the Theo Service during the Term. Such use is limited to Your internal use. c)Documentation License. Subject to the terms and conditions contained in this Agreement, We hereby grant toYou a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(e)license to use the Documentation during the Term solely for Your internal business purposes in connection with its use of the Theo Service.
d)Use Restrictions.You shall not use the Theo Service for any purposes beyond the scope of the access granted in this Agreement.You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Theo Serviceor Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise commercially exploit or make available the Theo Service or Documentationto any third party, except as contemplated by this agreement;(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Theo Service, in whole or in part; (iv) remove any proprietary notices from the Theo Serviceor Documentation; or (v) use the Theo Serviceor Documentation in any manner or for any purpose that 3infringes, misappropriates, or otherwise violates any intellectual property right or other rightsof any person, or that violates any applicable law.e)Reservation of Rights. Wereserve all rights not expressly granted toYou in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, toYou or any third party any intellectual property rights or other right, title, orinterest in or to the Provider IP.f)Suspension.Nonwithstanding anything to the contrary in this Agreement, Wemay temporarily suspend Yourand any Authorized User’s access to any portion or all of the Theo Serviceif: (i) Wereasonably determine that
(A) there is a threat or attack on any of the Provider IP;
(B) Your or any Authorized User’s use of the Provider IPor any Third-Party Productsdisrupts or poses a security risk to the Provider IP or to any other User or vender or Provider;
(C) subject to applicable law,You haveceased to continue Yourbusiness in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (ii) any vendor of ourshas suspended or terminated Ouraccess to or use of any third-party Theo Serviceor products required to enable Yourto access the Theo Service; or (iii) in accordance with Section 2(f)(any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Weshall use commercially reasonable efforts to provide written notice of any Service Suspension toYou and to provide updates regarding resumption of access to the Theo Servicefollowing any Service Suspension. Weshall use commercially reasonable efforts to resume providing access to the Theo Serviceas soon as reasonably possible after the event giving rise to Theo ServiceSuspension is cured. Wewill have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences thatYou or any Authorized User may incur as a result of a Service Suspension. g)Deactivation.IfYou are not satisfied with the Theo Service,You canrequest to deactivate Youraccess to the Theo Serviceby emailing jammil@theobuild.com.You may remain visible to Users on Theo Serviceafter being deactivatedif, but not limited to,You are attached to an active project. As described in Section 10(c), upon deactivation, User will still be responsible for any outstanding fees owed to Us.h)Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Wemay monitor Youruse of the Theo Serviceand collect and compile Aggregated Statistics. As between Provider and User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider.You acknowledge that Wemay compile Aggregated Statistics based on UserData input into the Theo Service.You agrees that Wemay (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identifyYou or YourConfidential Information.
3. Customer Responsibilities.4a)General.You areresponsible and liable for all uses of the Theo Serviceand Documentation resulting from access provided to you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing,You areresponsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Userwill be deemed a breach of this Agreement by User. Usershall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Theo Service, and shall cause Authorized Users to comply with such provisions.b)Third-Party Products. Wemay from time to time make Third-Party Products available to you. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. IfYou do not agree to abide by the applicable terms for any such Third-Party Products, thenYou should not install or use such Third-Party Products.We are not liable for Your improper use of any Third-Party Products.User agrees to indemnify Us against any action arising from the violation of this Section.
4. Fees.The use of the Theo Service may be provided for a Fee. The Fee and payment terms for the Theo Service including all applicable taxes (“Fee”) are set forth in the Billing Notice and will be issued before the Billing Date. Except otherwise specified herein (i) fees are based on services purchased and not on actual usage, and (ii) the payment obligations are non-cancelable and fees paid may be non-refundable.You must notify Us of any fee dispute within 15 days of the invoice date, and once resolved,You agree to pay those fees within 15 days. We reserve the right to update the price for the Theo Service at any time, with prior written notice, price changes will be effective as of Your next billing cycle. If failure to pay Fees continues for more than 15 days, We reserve the right to, in addition to any other remedies available at law or in accordance with this Agreement, suspend Your and Your Authorized Users’access to any portion or all of the Theo Service until such amounts are paid in full.
5. Confidential InformationWe agreethat We will hold User Data that Wereceive fromYou via the Theo Service and that is in compliance with Your obligations under this Agreement in confidence and willnot knowingly distribute to third parties without authorization.You acknowledge that the Aggregated Statistics derived from User Data is not confidential information.
6. Intellectual Property Ownership; Feedback.a)Provider IP.You acknowledge that, as between User and Provider, We own all right, title, and interest, including all intellectual property rights, in and to the Provider IP,and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. b)UserData. Weacknowledge that, as between Provider and User,You own all right, title, and interest, including all intellectual property rights, in and to the UserData.You hereby grant to Usa non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the UserData and perform all acts with respect to the UserData as may be necessary for Usto provide the Theo Serviceto you, and a non-exclusive, 5perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display UserData incorporated within the Aggregated Statistics.c)Feedback. IfYou or any of Youremployees or contractors sends or transmits any communications or materials to Usby mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Wearefree to use such Feedback irrespective of any other obligation or limitation betweeWthe Parties governing such Feedback.You hereby assignto Uson Yourbehalf, and on behalf of Your employees, contractors and/or agents, all right, title, and interest in, and Wearefree to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although We are not required to use any Feedback.7. Warranty Disclaimer. THE PROVIDER IP IS PROVIDED “AS IS”, “WHERE IS”, “WITH ALL FAULTS”AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification. a)Provider Indemnification. a.Weshall indemnify, defend, and hold harmlessUsersfrom and against any and all losses, damages, liabilities, costs (including reasonable attorneys’fees) (“Losses”) incurred by Usersresulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Theo Serviceinfringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided thatYou promptly notify Us in writing of the claim, cooperate with us, and allowUs sole authority to control the defense and settlement of such claim. b.If such a claim is made or appears possible,You agree to permit us, at Oursole discretion, to (A) modify or replace the Theo Service, or component or part thereof, to make it non-infringing, or (B) obtain the right forYou to continue use. If Wedetermine that neither alternative is reasonably available, Wemay terminate this Agreement, in its entirety or with respectto the affected component or part, effective immediately on written notice to Users. 6c.This Section 8 will not apply to the extent that the alleged infringement arises from: (A) use of the Theo Servicein combination with data, software, hardware, equipment, or technology not provided by Usor authorized by Usin writing; (B) modifications to the Theo Servicenot made by us; (C) UserData; or (D) Third-Party Products. b)UserIndemnification.You shall indemnify, hold harmless, and, at Ouroption, defend Usfrom and against any Losses resulting from any Third-Party Claim that the UserData, or any use of the UserData in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rightsand any Third-Party Claims based on Youror any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Theo Servicein a manner not authorized by this Agreement; or (iii) modifications to the Theo Servicenot made by us, provided thatYou may not settle any Third-Party Claim against Usunless Weconsent to such settlement, and further provided that Wewill have the right, at Ouroption, to defend ourselfagainst any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. c)Sole Remedy. THIS SECTION 8SETS FORTH USER’SSOLE REMEDIESAND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE THEO SERVICEINFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATESANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 8EXCEEDTHE TOTAL VALUE OF AMOUNTS PAID BYYou UNDER THIS AGREEMENT.
9. Limitations of Liability. IN NO EVENT WILL WEBE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, OR LOSS OR DAMAGES BASED UPON ANY MULTIPLE; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR THEO SERVICE, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO PROVIDER UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000,WHICHEVER IS LESS.
10. Term and Termination. 7
a)Term. This Agreement, as amended from time to time in accordance with the preamble to this Agreement will begin on the Effective Date and will automatically renew for additional one-year periods at the end of the current term (each a “Renewal Period”) until deactivation in accordance with Agreement Section 2(g)or termination in accordance with this Agreement Section 10(b).
b)Termination. We may suspend Your access to the Theo Service without notice or liability if it is determined, in Our sole discretion, thatYou are acting or have acted in a way that is not in compliance with this Agreement, or which negatively reflects on or affects us, Our services, Our prospects, Our Users or Our affiliates in any way. We may, in Our sole discretion and without prior notice, terminate Your access to the Theo Service in any other circumstances where We determines this to be appropriate and/or necessary. We may terminate Your access to Theo Service with prior notice if there is no activity in a continuous period of twelve (12) months from the last login date. We may also suspend or terminate Your access to Theo Service ifYou do not pay undisputed fees.
c)Effect of Termination. Upon deactivation, expiration or earlier termination of this Agreement,You shall immediately discontinue use of the Provider IP and, without limiting Your obligations under Section 5,You shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No deactivation, expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund) Survival. This Section 10 and Sections 1, 2, 4, 5, 6, 7, 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
a)Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to said subject matter.
b)Availability. We will make commercially reasonable efforts to ensure that the Theo Service will be available 24 hours a day and 7 days a week, except for (i) down-time for maintenance, advance notice will be provided if the duration is expected to exceed 30 minutes during business hoursin Dallas, Texasand (ii) any unvailiability caused by circumstances beyondOur reasonablecontrol, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (otherthan one involving Our employees), Internet service provider failure or delay. The foregoing does not constitute a warranty or guaranty of service level availability.
c)Severability. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision hereof shall be affected as a result thereof, and, accordingly, 8the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision has not been contained herein.
d)Governing Law; Submission to Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach therof, shall be determined by final and binding arbitrion admintistered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures. If the controversy or claim is taken to court for emergency relief or to enforce the arbitration award, this Agreement is governed by and construed in accordance with the internal laws ofthe State of Texaswithout giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder or arbitration award will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Dallasand County of Dallas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.Each party waives its right to a jury trial.The prevailing party of any controversy or claim shall receive costs for attorneys fees. e)Assignment.You may not assign any of Your rights or delegate any of Your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of us. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. We may assign this Agreement in its entirety, without Your consent to an affiliate or otherwise in connection with a merger, acquisition, corporate reorganization, or sale of assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. f)Export Regulation.You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Theo Serviceor any Customer Data outside the US.
g)Equitable Relief.You acknowledge and agrees that a breach or threatened breach byYou of any of Your obligations under Section 0orSection 5, would cause the Us irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, We will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
h)Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.9I)Contact Us.If You have any questions concerning this Agreement, please contact Us by one of the following:
(i) Phone: 1-925-999-5895;
(ii) Email: jammil@theobuild.com
(iii) Mail: C/O Theo Technology Holdings LLC, 8350 N Central Expy Suite 1900, Dallas, TX 75206.
