Simpson Strong-Tie Truss Services Standard Terms and Conditions
All capitalized terms used herein, including those set forth in Exhibit A, have the meanings indicated, and cognate terms have corresponding meanings.
Licensed Software License.
The following provisions apply only if Licensed Software will be installed on Customer’s Designated Systems:
License Grant. Subject to the terms and conditions of this Agreement and the payment of any applicable License Fees, Simpson hereby grants to Customer a limited, non-exclusive, personal, non-transferable, non-sublicensable license to download, install and use a copy of the Licensed Software, including the Documentation. Subject to the terms and conditions of this Agreement, this limited license permits use of the Licensed Software only on one (1) Seat and solely for information and design purposes in connection with the products specified by the Licensed Software. Except for the license expressly granted hereunder, Simpson retains all right, title and interest in and to the Licensed Software, including without limitation the Documentation. No other right or license of any kind is granted to Customer. Unauthorized copying or use of the Licensed Software or any part thereof, or failure to comply with any of the restrictions set forth below, will result in automatic termination of this license and will make available to Simpson other legal remedies. This limited license is not a sale of the original Licensed Software or any backup copy.
Electronic Delivery. All Licensed Software, including Updates, and Documentation shall be made available to Customer for electronic download via the Internet; provided, however, that in exceptional circumstances Customer may request to receive the Software via tangible medium, in which case the tax jurisdiction will be the address to which the tangible medium shall have been shipped to Customer. For all other transactions, the tax jurisdiction will be Customer’s billing address unless Customer shall have provided notice to Simpson Strong-Tie of another address in accordance with applicable law.
Customer shall not: (i) remove, obscure, or alter Simpson’s copyright, trademark or other proprietary rights notices, labels or marks contained in the Simpson Strong-Tie Solutions or otherwise take any action inconsistent with Simpson’s title to the Simpson Strong-Tie Solutions, (ii) copy the Licensed Software or Documentation, except for purposes of making a reasonable number of backup or archival copies; (iii) permit any Affiliate or Third Party to use the Simpson Strong-Tie Solutions; (iv) cause, aid or permit reverse engineering, reverse compilation, decompilation or reverse assembly of all or any portion of the Simpson Strong-Tie Solutions or otherwise attempt to derive the Simpson Strong-Tie Solutions’ source code, algorithms, methods or techniques used or embodied in the Simpson Strong-Tie Solutions, except to the extent permitted under applicable law; (v) modify, alter, translate, adapt or create any Derivative Works (defined below) based on the Simpson Strong-Tie Solutions or any portion thereof; (vi) distribute, disclose, publish, market, sell, rent, lease, loan, transfer, sublicense or assign to any Third Party any portion of the Simpson Strong-Tie Solutions; (vii) use the Simpson Strong-Tie Solutions in the operation of a service bureau or make the Simpson Strong-Tie Solutions available to third parties as part of any service offering; (viii) use the Simpson Strong-Tie Solutions or any part thereof (including, without limitation, Simpson Strong-Tie® product names, nomenclature, model numbers or any other trademarks) to specify or facilitate the selection of any products other than the Simpson Strong-Tie® products or other products specified by any Output from the Simpson Strong-Tie Solutions; (ix) use the Simpson Strong-Tie Solutions for design or construction purposes without first securing or performing any professional technical and engineering services required to review and confirm the appropriateness and accuracy of all Output; or (x) install or use the Licensed Software on more than the limited number of Seats permitted by this Agreement or for any purpose other than in accordance with the terms and conditions of this Agreement.
Only Authorized Users may use or access the Simpson Strong-Tie Solutions. No User ID may be shared by more than one Authorized User. Customer shall be responsible for ensuring the security and confidentiality of all User IDs provided to Customer and any passwords or other information used to access or use the Simpson Strong-Tie Solutions. Customer shall not disclose User IDs or passwords to any Third Party. Customer acknowledges that it shall be fully responsible for any liabilities: (i) incurred through use of any User ID and that any transactions under a User ID shall be deemed to have been performed by Customer; and (ii) relating to any authorized or unauthorized access to the Simpson Strong-Tie Solutions, and for all Input, Output or other information that Customer receives, transmits, stores or uses through or via the Simpson Strong-Tie Solutions.
Simpson Strong-Tie shall provide to Customer any Application Services identified in the Order Form, Exhibits or any other SOW, subject to the terms of this Agreement. Customer may subscribe to additional Application Services in the future by executing an Order Form provided by Simpson Strong-Tie. Subject to the terms of this Agreement, Simpson Strong-Tie will make the Application Services and related Documentation available to Customer via the Internet during the Term solely for Customer’s Internal Business Purposes. Customer shall, at its own expense, acquire, install, configure and maintain all Third Party Hardware and Software as may be required for Authorized Users to connect to and access the Application Services via the Internet.
Sealed Engineering Services.
Unless Customer and Simpson Strong-Tie enter into a separate signed agreement regarding the provision of engineering services by Simpson Strong-Tie, all engineering services provided by Simpson Strong-Tie in connection with the Simpson Strong-Tie Solutions or the Simpson Strong-Tie truss products shall be governed by the terms of this Section 6. The parties acknowledge and agree that, to the extent that ANSI/TPI 1-2014 (National Design Standard for Metal Plate Connected Wood Truss Construction) or any revision thereof specifically provides that a party is responsible for certain obligations (“TPI Obligations”), and to the extent that any applicable law imposes obligations on Simpson Strong-Tie with respect to the Sealed Engineering Services, nothing contained herein shall modify such obligations.
Sealed Engineering Services Generally. Customer may request in writing from time to time that Simpson Strong-Tie provide Sealed Engineering Services. Simpson Strong-Tie may accept or reject any request for Sealed Engineering Services by notice to Customer. If Simpson Strong-Tie is willing to perform the requested Sealed Engineering Services, Simpson Strong-Tie shall provide Customer with a proposed Statement of Work and price quotation based on Simpson Strong-Tie’s Master Pricing Addendum, which may be amended from time to time by Simpson Strong-Tie. The scope of any Sealed Engineering Services to be provided by Simpson Strong-Tie shall be determined by the applicable Statement of Work, subject to the limitations set forth in this Agreement, including without limitation in this Section 6 and in Section 11. Under no circumstances will Simpson Strong-Tie have any liability or responsibility for any design related to any part of the Customer Overall Designs other than the specific engineering services set forth in the applicable Statement of Work with respect to the truss or truss system, as applicable. In the event of any inconsistency between the terms in any request for Sealed Engineering Services and the terms of this Agreement, the terms of this Agreement shall govern.
Customer’s Responsibilities. Except for Simpson Strong-Tie’s TPI Obligations, and notwithstanding anything in any truss placement diagram, individual truss design or other Sealed Engineering Deliverable, Simpson Strong-Tie shall not be responsible for confirming or ensuring the accuracy and completeness of the loads, specifications, design information, construction plans or any other information provided to Simpson Strong-Tie, including without limitation the Customer Overall Designs. Simpson Strong-Tie will create each Sealed Engineering Deliverable based on an electronic file provided by Customer that contains software Input and design criteria selected by Customer. Each Sealed Engineering Deliverable will be generated, reviewed and sealed by Simpson Strong-Tie under the direct supervision of a licensed professional engineer, but Simpson Strong-Tie shall have no responsibility or liability for incorporating any information from the Customer Overall Designs into its Sealed Engineering Deliverables, except to the extent that Simpson Strong-Tie explicitly states in a Sealed Engineering Deliverable that the applicable information was reviewed. It is Customer’s exclusive obligation to ensure that any information Customer considers necessary to perform the Sealed Engineering Services is listed by Simpson Strong-Tie on the applicable Sealed Engineering Deliverable as information it reviewed to create such Sealed Engineering Deliverable. Except for Simpson Strong-Tie’s TPI Obligations, as between Simpson Strong-Tie and Customer, Customer shall be solely responsible for: (i) ensuring that Customer or third-party professionals retained by Customer have reviewed and certified (1) the adequacy and accuracy of each Sealed Engineering Deliverable prior to any construction use of such Sealed Engineering Deliverable, (2) the suitability and use of each truss component for the applicable building and the overall building design, (3) that the positions, dimensions and loads for each truss match all construction design documents and meet or exceed any applicable building code requirement, including, without limitation, any International Code requirements, as adopted in the relevant jurisdiction; and (ii) designing all elements of the truss support structure. Simpson Strong-Tie is not responsible for designing or providing for the permanent bracing of the roof and floor systems or the overall structure.
Truss Design Services.
Unless Customer and Simpson Strong-Tie enter into a separate signed agreement regarding the provision of non-engineering, truss design services by Simpson Strong-Tie, all non-engineering truss design services provided by Simpson Strong-Tie in connection with the Simpson Strong-Tie Solutions or the Simpson Strong-Tie truss products shall be governed by the terms of this Section 7. For the avoidance of doubt, the Truss Design Services do not include any Sealed Engineering Services or any other engineering services. The parties acknowledge and agree that, to the extent that ANSI/TPI 1-2014 (National Design Standard for Metal Plate Connected Wood Truss Construction) or any revision thereof specifically provides that a party is responsible for any TPI Obligations, Simpson Strong-Tie will not perform such obligations as part of the Truss Design Services, and Customer shall be solely responsible for performing such TPI Obligations or retaining a Third Party to perform such TPI Obligations.
Truss Design Services Generally. Customer may request in writing from time to time that Simpson Strong-Tie provide Truss Design Services. Simpson Strong-Tie may accept or reject any request for Truss Design Services by notice to Customer. If Simpson Strong-Tie is willing to perform the requested Truss Design Services, Simpson Strong-Tie shall provide Customer with a proposed Statement of Work and price quotation based on Simpson Strong-Tie’s Master Pricing Addendum, which may be amended from time to time by Simpson Strong-Tie. The scope of any Truss Design Services to be provided by Simpson Strong-Tie shall be determined by the applicable Statement of Work, subject to the limitations set forth in this Agreement, including without limitation in this Section 7 and in Section 11. The Truss Design Services will be limited to either individual truss design or a truss placement diagram, as specified in the applicable Statement of Work. Under no circumstances will Simpson Strong-Tie have any liability or responsibility for any design related to any part of the Customer Overall Designs other than the individual truss design or a truss placement diagram, as applicable. In the event of any inconsistency between the terms in any request for Truss Design Services and the terms of this Agreement, the terms of this Agreement shall govern.
Customer’s Responsibilities. Notwithstanding anything in any truss placement diagram, individual truss design or other Truss Design Deliverable, Simpson Strong-Tie shall not be responsible for confirming or ensuring the accuracy and completeness of the loads, specifications, design information, construction plans or any other information provided to Simpson Strong-Tie, including without limitation the Customer Overall Designs. Simpson Strong-Tie shall have no responsibility or liability for incorporating any information from the Customer Overall Designs into its Truss Design Deliverables. As between Simpson Strong-Tie and Customer, Customer shall be solely responsible for: (i) ensuring that Customer or third-party professionals retained by Customer have reviewed and certified (1) the adequacy and accuracy of each Truss Design Deliverable prior to any construction use of such Truss Design Deliverable, (2) the suitability and use of each truss component for the applicable building and the overall building design, (3) that the positions, dimensions and loads for each truss match all construction design documents and meet or exceed any applicable building code requirement, including, without limitation, any International Code requirements, as adopted in the relevant jurisdiction; and (ii) designing all elements of the truss support structure. Simpson Strong-Tie is not responsible for designing or providing for the permanent bracing of the roof and floor systems or the overall structure.
Software Support Services.
Simpson Strong-Tie shall perform any Software Support Services set forth in the Exhibits or any other SOW, subject to the terms of this Agreement. Customer may subscribe to additional Software Support Services in the future by executing an Order Form provided by Simpson Strong-Tie. The Software Support Services may include, as applicable, providing telephone support, e-mail support, Error Correction, Updates and other support related to the Simpson Strong-Tie Solutions.
Simpson Strong-Tie shall perform any other Services and shall provide any Deliverables identified in the Order Form, Exhibits or any other SOW, subject to the terms of this Agreement. The other Services may include, as applicable, BIM drafting services, marketing content creation services, implementation and setup services, delivery of reports and other Deliverables, integration, installation, configuration, custom programming, customization, training and other Services related to the Simpson Strong-Tie Solutions. To the extent that any SOW for other Services requires Simpson Strong-Tie to provide Deliverables to Customer prior to completion of the SOW, Customer shall be responsible for reviewing such Deliverables and providing feedback to Simpson Strong-Tie in accordance with the SOW. Each Party shall use commercially reasonable efforts to perform its obligations under any SOW in accordance with the time frames and other terms set forth therein. Customer acknowledges that such time frames are an estimate only (not a requirement) and that such time frames may vary if Customer fails to provide the personnel, resources, feedback or other information specified in any SOW.
Customer may request changes to the Services specified in any SOW, by delivery of a written request to Simpson Strong-Tie describing the desired changes (each, a “Change Request”). Within a reasonable time, not to exceed fifteen (15) business days, after receipt of any Change Request, Simpson Strong-Tie shall provide a written response informing Customer whether such Change Request is accepted and whether it would result in an extension of the schedule for Services or any additional cost to Customer (each, a “Change Order”). Simpson Strong-Tie may, upon prior Notice to Customer, charge Customer a fee for such review and analysis. A Change Order shall be considered binding on the Parties and effective if, within ten (10) business days after receipt of such Change Order, Customer executes the Change Order provided by Simpson Strong-Tie (which, upon acceptance, shall become a new SOW).
Limitations on Scope of Sealed Engineering Services and Truss Design Services.
Limitations. Notwithstanding anything to the contrary set forth in this Agreement or in any Truss Services Deliverable:
Simpson Strong-Tie will provide limited Truss Services solely in connection with the Simpson Strong-Tie Solutions and the sale of Simpson Strong-Tie truss products, and will not conduct, and shall have no liability for, any of the obligations set forth in Section 6(b) or 7(b) above.
The Truss Services are provided only in connection with the sale by Simpson Strong-Tie to Customer of the Simpson Strong-Tie products identified in the Truss Services Deliverables and for the purposes specified therein, and such Truss Services and Truss Services Deliverables may not be used with any substitute products, for any other purpose or by any other party.
THE TRUSS SERVICES WILL BE LIMITED TO EITHER INDIVIDUAL TRUSS DESIGN OR THE TRUSS PLACEMENT DIAGRAM, AS SPECIFIED IN THE APPLICABLE STATEMENT OF WORK. UNDER NO CIRCUMSTANCES WILL SIMPSON STRONG-TIE HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY DESIGN RELATED TO ANY PART OF THE CUSTOMER OVERALL DESIGNS OTHER THAN THE INDIVIDUAL TRUSS DESIGN OR THE TRUSS PLACEMENT DIAGRAM, AS APPLICABLE.
SIMPSON STRONG-TIE’S TRUSS SERVICES RELATED TO AN INDIVIDUAL TRUSS WILL BE BASED ON DESIGN CRITERIA AND REQUIREMENTS SUPPLIED BY THE TRUSS MANUFACTURER. TO THE EXTENT THAT ANY TRUSS SERVICES DELIVERABLES INCLUDES A SEAL ON A DRAWING, SUCH SEAL INDICATES ACCEPTANCE OF PROFESSIONAL ENGINEERING RESPONSIBILITY SOLELY FOR THE TRUSS COMPONENT DESIGN SHOWN IN THE DRAWING. THE TRUSSES SHOWN IN ANY TRUSS SERVICES DELIVERABLES ARE DESIGNED AS INDIVIDUAL BUILDING COMPONENTS TO BE INCORPORATED INTO THE BUILDING DESIGN AT THE SPECIFICATION OF THE BUILDING DESIGNER. SIMPSON STRONG-TIE WILL NOT REVIEW OR INSPECT THE SUITABILITY OF ANY INDIVIDUAL TRUSS FOR THE CONTEMPLATED USE, THE CUSTOMER OVERALL DESIGNS, OR ANY OTHER ASPECT OF THE BUILDING. THE BUILDING DESIGNER IS RESPONSIBLE FOR TEMPORARY AND PERMANENT BRACING OF THE ROOF AND FLOOR SYSTEM AND FOR THE OVERALL STRUCTURE. THE BUILDING DESIGNER IS ALSO RESPONSIBLE FOR THE DESIGN OF THE ENTIRE TRUSS SUPPORT STRUCTURE, INCLUDING, BUT NOT LIMITED TO, HEADERS, BEAMS, WALLS, AND COLUMNS.
Assumptions. In performing any Truss Services and preparing any Truss Services Deliverable, Simpson Strong-Tie assumes and will rely on the accuracy and completeness of the loads, specifications, design information, construction plans and other information and Input provided to Simpson Strong-Tie by or on behalf of Customer. Simpson Strong-Tie will not verify the accuracy of any such information or Input and disclaims any responsibility for the accuracy or completeness of such information or Input.
Customer’s Responsibility for Modifications of Design and Construction. (a) Simpson Strong-Tie shall have no responsibility or liability for any modifications made to the Truss Services Deliverables made by Customer or any Third Party. Nor shall Simpson Strong-Tie have any responsibility or liability related to the installation of the Simpson Strong-Tie products or the construction of any building that uses any Simpson Strong-Tie products or any third-party products specified in any Truss Services Deliverable. Customer shall be solely responsible for ensuring that all information and Input provided to Simpson Strong-Tie is complete, accurate and correct, and for ensuring that the Truss Service Deliverables or any modifications thereto are suitable for the contemplated use. Nothing contained in this Agreement is intended or shall be construed to modify the obligations of a Truss Manufacturer, regardless of the Truss Services performed by Simpson Strong-Tie. Nor shall anything contained in this Agreement be construed to modify the obligations of the Building Designer, who shall be responsible for temporary and permanent bracing of the roof and floor system and for the overall structure, and for the design of the entire truss support structure, including, but not limited to, headers, beams, walls, and columns.
Other Feedback Provided by Simpson Strong-Tie. Simpson Strong-Tie may, in the course of preparing any Truss Services Deliverable, review and provide feedback in addition to the Truss Services Deliverables (“Simpson Strong-Tie Feedback”) to Customer regarding Customer’s engineering designs or other design aspects outside of the scope of Simpson Strong-Tie’s limited review for the Truss Services. ANY SIMPSON STRONG-TIE FEEDBACK IS PROVIDED AS A PROFESSIONAL COURTESY TO CUSTOMER AND IS PROVIDED WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. SIMPSON STRONG-TIE DOES NOT GUARANTY THE ACCURACY OF THE SIMPSON STRONG-TIE FEEDBACK AND UNDERTAKES NO OBLIGATION TO CORRECT ANY SIMPSON STRONG-TIE FEEDBACK, REGARDLESS OF WHETHER SIMPSON STRONG-TIE SUBSEQUENTLY LEARNS OF ANY INACCURACIES THEREIN. SIMPSON STRONG-TIE ASSUMES NO LIABILITY FOR THE SIMPSON STRONG-TIE FEEDBACK, AND CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ENSURING THE ACCURACY OF ANY SIMPSON STRONG-TIE FEEDBACK.
Third Party Hardware and Software. Customer shall be solely responsible for the purchase, installation, maintenance and use of all Third Party Hardware and Software. Simpson Strong-Tie shall not be required to provide any Services relating to: (i) Third Party Hardware and Software; (ii) any interoperability of the Simpson Strong-Tie Solutions with any Third Party Hardware and Software; (iii) any failure to meet any Minimum System Requirements; or (iv) resolving Customer network, workstation, environmental or other problems not directly related to the Simpson Strong-Tie Solutions.
Provision of Customer Data. Customer shall be solely responsible for collecting, Uploading and updating all Customer Data. Customer shall not Upload any Customer Data that has not been backed up and securely stored elsewhere in a reasonably accessible format. Simpson Strong-Tie shall not be liable or responsible for any lost data, including Customer Data and any data that may be generated through use of the Simpson Strong-Tie Solutions.
Designated Customer Representative. Customer shall designate an employee (“Project Manager”) who shall be assigned the primary responsibility for communicating with and providing necessary assistance to Simpson Strong-Tie with respect to the Services provided pursuant to this Agreement. Project Manager will be the primary point of contact for this Agreement, and shall respond promptly when contacted by Simpson Strong-Tie regarding this Agreement.
CUSTOMER OBLIGATIONS. (a) CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS BEEN ADVISED TO SECURE, AND THAT USE OF THE SIMPSON STRONG-TIE SOLUTIONS AND THE TRUSS SERVICES ARE CONDITIONED ON CUSTOMER SECURING, PROFESSIONAL TECHNICAL AND/OR ENGINEERING EXPERTISE TO REVIEW AND CONFIRM THE APPROPRIATENESS AND ACCURACY OF ALL INFORMATION AND TRUSS SERVICES DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ALL INPUT AND OUTPUT OF THE SIMPSON STRONG-TIE SOLUTIONS. THE SIMPSON STRONG-TIE SOLUTIONS, INCLUDING THE FILES, TABLES, DRAWINGS AND INFORMATION CONTAINED THEREIN, ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY TO ASSIST WITH DESIGN, ENGINEERING AND PRODUCT SELECTION. THE SIMPSON STRONG-TIE SOLUTIONS IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT, INDEPENDENT DESIGN OR TESTING FOR STRESS, SAFETY AND UTILITY. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE PERSONS USING THE SIMPSON STRONG-TIE SOLUTIONS, WHICH RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, DETERMINING WHETHER AND HOW TO USE THE SIMPSON STRONG-TIE SOLUTIONS AND ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT, INCLUDING ALL PRODUCTS SELECTED BY USING THE SIMPSON STRONG-TIE SOLUTIONS. SIMPSON STRONG-TIE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO, AND SHALL NOT BE LIABLE FOR, ANY INFORMATION, REPORTS, DESIGNS, OUTPUT, MATERIALS OR PRODUCTS OBTAINED FROM USE OF THE SIMPSON STRONG-TIE SOLUTIONS, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ACCURACY, COMPLETENESS, FREEDOM FROM ERRORS OR ADEQUACY OF DESIGN. IT IS CUSTOMER’S RESPONSIBILITY TO VERIFY ANY OUTPUT FROM THE SIMPSON STRONG-TIE SOLUTIONS FOR ACCURACY, COMPLETENESS, SUITABILITY FOR CUSTOMER’S PARTICULAR SITE CONDITIONS, AND COMPLIANCE WITH LOCAL BUILDING CODES AND PRACTICES.
USE ONLY WITH SPECIFIED PRODUCTS. THE SIMPSON STRONG-TIE SOLUTIONS AND THE TRUSS SERVICES ARE INTENDED TO BE USED, AND MAY BE USED, ONLY IN CONJUNCTION WITH THOSE SIMPSON STRONG-TIE® OR OTHER PRODUCTS, IF ANY, SPECIFIED BY THE SIMPSON STRONG-TIE SOLUTIONS OR IN ANY TRUSS SERVICES DELIVERABLE. SUBSTITUTION OR USE OF ANY OTHER PRODUCTS MAY CAUSE DAMAGE TO PERSONS OR PROPERTY, EVEN IF ANY SUBSTITUTE PRODUCT CLAIMS TO BE EQUIVALENT TO THE SPECIFIED PRODUCT OR IF THE LIMITED DATA PUBLISHED IN REPORTS OR OTHER DOCUMENTS IS SIMILAR OR IDENTICAL. YOU MUST CONFIRM ALL RESULTS BY REFERRING TO THE CURRENT SIMPSON STRONG-TIE CATALOG AND WEBSITE. YOU SHOULD CONSULT WITH A TRAINED PROFESSIONAL TO ENSURE THAT THE PRODUCTS ARE PROPERLY SPECIFIED FOR YOUR PARTICULAR ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THAT THE PRODUCTS HAVE THE PROPER LEVEL OF CORROSION RESISTANCE BASED ON YOUR PARTICULAR ENVIRONMENTAL CONDITIONS, MATERIALS, CONSTRUCTION DESIGN AND OTHER FACTORS) AND TO ENSURE THAT THE PRODUCTS ARE USED IN ACCORDANCE WITH THE DESIGN LIMITS AND THE STRUCTURAL, TECHNICAL AND ENVIRONMENTAL SPECIFICATIONS SET FORTH IN THE CURRENT SIMPSON STRONG-TIE CATALOG AND WEBSITE.
Acceptance. Upon completion of the Services in any SOW (“Completion Date”), Simpson Strong-Tie shall send via email to Customer a notice of completion or the final Deliverables. The Services and any Deliverables provided on or before the Completion Date shall be deemed to have been accepted ten (10) business days following the Completion Date unless Customer provides Simpson Strong-Tie with Notice of noncompliance that identifies with specificity any Error or Deficiency (“Notice of Noncompliance”). Simpson Strong-Tie shall have ten (10) business days following receipt by Simpson Strong-Tie of any Notice of Noncompliance to either Correct the Error or Deficiency or describe in detail how Simpson Strong-Tie intends to Correct the Error or Deficiency, including the time required for such Correction (the “Correction Plan”). Upon receipt of the Correction Plan, the Customer shall have five (5) business days to provide any reasonable objection to the Correction Plan to Simpson Strong-Tie in writing (“Objection”). If Customer timely provides any Objection to the Correction Plan, the Parties shall use commercially reasonable efforts in good faith to agree upon a revised Correction Plan. If the Customer does not provide any Objection to the Correction Plan within such five (5) day period, the Correction Plan shall be deemed to have been accepted by Customer. Simpson Strong-Tie shall use commercially reasonable efforts to implement any Correction Plan. Following implementation of any Correction Plan, Simpson Strong-Tie shall provide Customer with notice thereof or the final Deliverables, and Customer shall have ten (10) business days to accept the applicable Deliverables and Services or provide a Notice of Noncompliance, in which case the procedures set forth above in this Section 13 shall apply.
Fees and Payments.
Fees. In consideration of the Licenses and Services provided by Simpson Strong-Tie, Customer agrees to pay all fees set forth in any SOW, including any Exhibit or Order Form (the “Fees”). Simpson Strong-Tie shall invoice Customer according to the terms of any such SOW. Any Services for which the fees are not set forth in any SOW shall be paid for on a time and materials basis at Simpson Strong-Tie’s then-current hourly rates. Unless otherwise set forth in any written agreement of the parties, Simpson Strong-Tie may adjust its pricing and fees with respect to any products, services or licenses at any time by providing thirty (30) days prior written notice thereof to Customer.
Expenses. Except as otherwise expressly provided in any SOW, Customer shall reimburse Simpson Strong-Tie for all out-of-pocket expenses reasonably incurred in rendering any Services hereunder, including reasonable travel and transportation expenses, lodging, and meals (“Expenses”); provided, however, that Simpson Strong-Tie shall request and obtain prior written approval from Customer for any travel Expense exceeding one thousand dollars ($1000) and any non-travel Expense exceeding five hundred dollars ($500).
Payment Terms. Customer shall pay all Fees on or before the due date specified in the applicable invoice (the “Due Date”). All amounts not paid by the Due Date shall accrue interest at the lower of: (i) the highest lawful rate or (ii) 1.5% per month. In addition, Customer’s failure to pay any Fees by the Due Date shall be deemed a material breach of this Agreement, which shall give Simpson Strong-Tie the right, but not the obligation, to suspend Customer’s use of the Licensed Software or Application Services, cease providing any Services or terminate this Agreement immediately. Any such suspension or termination does not relieve Customer from paying past due Fees plus interest, and does not limit Simpson Strong-Tie’s other remedies for breach of this Agreement. In the event of collection enforcement, the prevailing party shall be entitled to recover any of its fees or costs associated with such collection, including, without limitation, legal costs, attorneys’ fees, expert fees, court costs and collection agency fees.
Taxes. Customer shall pay, within thirty (30) days of any taxable event, all taxes (exclusive of taxes based on or computed with regard to the net income of Simpson Strong-Tie), levies or charges imposed by any governmental authority of any kind whatsoever applicable to this Agreement, the Simpson Strong-Tie Solutions or any Services, unless Customer shall have provided Simpson Strong-Tie with a properly-completed tax exemption certificate. If any governmental authority changes its tax position with respect to the taxability of the Simpson Strong-Tie Solutions or any other product or service provided to Customer, Simpson Strong-Tie may provide notice thereof to Customer and Customer shall pay any additional taxes, levees or charges resulting therefrom.
Audit. For the sole purpose of insuring compliance with this Agreement, Simpson Strong-Tie shall have the right, at its expense, to audit Customer’s use of the Simpson Strong-Tie Solutions on at least fifteen (15) business days’ advance Notice, during Customer’s normal business hours and no more frequently than once each year, which audit shall not unreasonably interfere with Customer’s business. Customer shall provide reasonable cooperation to Simpson Strong-Tie in connection with such audit, including granting to Simpson Strong-Tie supervised access to any systems used to access or store the Simpson Strong-Tie Solutions. Any such audit shall be subject to the confidentiality provisions of Section 17.
Simpson Strong-Tie Access to Customer Information. Customer shall provide Simpson Strong-Tie with all Customer Information required or reasonably requested by Simpson Strong-Tie for purposes of providing the Services contemplated under this Agreement, subject to the confidentiality provisions of Section 17. Upon request from Customer, Simpson Strong-Tie shall return to Customer or destroy all Customer documents and other tangible embodiments of Customer’s Information.
Use of Deliverables. Customer shall be solely responsible for its use of the Deliverables and other data, information and Output generated through use of the Simpson Strong-Tie Solutions.
Use of Aggregated Data. Subject to all applicable Laws and the confidentiality obligations set forth in Section 17 of this Agreement, Simpson Strong-Tie may capture and analyze data and information related to use of the Simpson Strong-Tie Solutions, which data and information may be used by Simpson Strong-Tie, including for the purpose of monitoring and improving system performance and the Simpson Strong-Tie Solutions. Customer hereby grants to Simpson Strong-Tie a non-exclusive, perpetual, irrevocable, unlimited, worldwide, royalty-free right and license to disclose and use any Aggregated Data generated as a result of this Agreement; provided that such Aggregated Data is de-identified with respect to Customer or any other Person.
Security Measures. Simpson Strong-Tie shall use commercially reasonable efforts to: (i) implement administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of the Customer Data, which safeguards shall include password protection and restricting access to Customer Data; (ii) maintain any firewalls and encryption described in the Documentation; (iii) conduct privacy and information security training, as appropriate, for its employees and contractors; and (iv) monitor security at any of Simpson Strong-Tie’s premises or on any of Simpson Strong-Tie’s computer systems where the Customer Data shall have been stored. Simpson Strong-Tie may host Customer Data through Third Party providers. Simpson Strong-Tie shall use commercially reasonable efforts to ensure that such Third Party providers comply with the requirements of this Agreement and SAS-70 or other similar standards applicable to hosted data centers, application service providers or other service organizations.
Ownership. As between the Parties, Customer shall own all right, title and interest in and to the Customer Information and all Intellectual Property Rights related thereto. As between the Parties, Simpson Strong-Tie or its Affiliates and licensors, as applicable, shall own all right, title and interest in and to the Simpson Strong-Tie Technologies. If title to any of the Simpson Strong-Tie Technologies does not, by operation of law, vest in Simpson Strong-Tie, Customer hereby assigns to Simpson Strong-Tie, or its designee, all right, title and interest in and to the Simpson Strong-Tie Technologies. For avoidance of doubt, the foregoing shall not be construed to transfer to Simpson Strong-Tie any right, title or interest in or to the Customer Information. Simpson Strong-Tie retains all rights not expressly granted to Customer hereunder.
Neither Party shall disclose the other Party’s Confidential Information to any Third Party, except as authorized by this Agreement. Each Party may disclose the other Party’s Confidential Information only to those of its Affiliates, employees and contractors who have a need to know such information and who have previously agreed in writing to be bound by confidentiality and nondisclosure obligations consistent with and no less restrictive than the terms of this Agreement. Each Party shall treat the other Party’s Confidential Information with reasonable care and at least the same degree of care as it accords its own Confidential Information. No violation of this Section shall occur by reason of a disclosure of Confidential Information as required by Law, including in response to a valid order by a court or other governmental body, provided that the Party subject to such order shall have provided the other Party with prior Notice of such disclosure in order to permit it to seek confidential treatment of such information, and provided further that the Party making such disclosure has been advised by counsel that such disclosure is required by Law.
Term and Termination.
Term. This Agreement shall remain in effect for the Initial Term and any Renewal Term, subject to Sections 18(b) and 18(c) below. On each anniversary of the Effective Date, this Agreement shall automatically renew for additional terms of one (1) year (each, a “Renewal Term”) unless either Party provides Notice to the other Party at least one hundred twenty (120) days’ prior to the expiration of the Initial Term or Renewal Term, as applicable, of its intention not to renew this Agreement.
Termination With Cause. Either Party may terminate this Agreement upon Notice to the other Party if the other Party breaches any material representation, warranty or obligation of this Agreement, which breach has not been substantially cured within thirty (30) days after such Notice has been provided. Simpson Strong-Tie may suspend access to the Simpson Strong-Tie Solutions or Services until any breach by Customer shall have been cured.
Termination for Nonpayment. If Customer fails to pay when due any Fees or Expenses and does not cure such breach within ten (10) days after Notice has been provided to Customer, Simpson Strong-Tie may terminate this Agreement.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) each Party shall return to the other Party or destroy all of the other Party’s documents and materials (including any Licensed Software and all tangible embodiments of any Confidential Information); (ii) Simpson Strong-Tie shall immediately cease performing Services; (iii) Customer and all Authorized Users shall immediately cease using any of the Simpson Strong-Tie Solutions; and (iv) Customer shall promptly pay to Simpson Strong-Tie any amounts owed under this Agreement, including any unpaid Fees or Expenses. Following each Party’s compliance with such return or destruction, as applicable, each Party shall provide the other Party with a statement signed by its one of its executive officers certifying that such destruction or return shall have been completed pursuant to this Section 18(d). Notwithstanding the foregoing, neither Party shall be required to destroy any documents, materials or data that it required by Law to retain or that is stored on any archival media or document retention systems.
Survival. Sections 3, 6(b), 7(b), 11, 12, 14, 15(a), 15(c), 15(d), and 16 through 22 shall continue in full force and effect notwithstanding, and shall survive, any termination of this Agreement.
Limited Warranties and Disclaimer of Warranties.
Warranty. Customer represents and warrants that: (i) it exclusively owns and has the right to disclose to Simpson Strong-Tie, Upload and use all Customer Information; (ii) it has obtained all rights, licenses, consents and permissions necessary to disclose to Simpson Strong-Tie, Upload and use the Customer Information; (iii) it has the power and authority to enter into this Agreement and to perform its obligations and grant to Simpson Strong-Tie any rights and licenses hereunder, and that its performance of this Agreement will not violate any agreement by which it is bound; and (iv) it shall comply with all applicable Laws, including all Laws applicable to the use of the Simpson Strong-Tie Solutions and the collection, processing, storage, disclosure, sharing, use or dissemination of information through or via the Simpson Strong-Tie Solutions.
Disclaimer of Warranty. OTHER THAN ANY WARRANTIES REQUIRED BY APPLICABLE LAW, SIMPSON STRONG-TIE MAKES NO, AND HEREBY DISCLAIMS AND EXCLUDES ALL, WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE, AS TO THE SIMPSON STRONG-TIE TECHNOLOGIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, WORKMANLIKE EFFORT, NON-INFRINGEMENT, OR THOSE WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE. EXCEPT AS REQUIRED BY APPLICABLE LAW, (i) THE SIMPSON STRONG-TIE TECHNOLOGIES (INCLUDING THE SIMPSON STRONG-TIE SOLUTIONS, SERVICES AND DELIVERABLES) ARE PROVIDED “AS IS” AND WITH ALL FAULTS, (ii) CUSTOMER ASSUMES ALL RISK RELATED TO THE SUITABILITY, USE, ACCURACY, QUALITY AND PERFORMANCE OF THE SIMPSON STRONG-TIE TECHNOLOGIES (INCLUDING THE SIMPSON STRONG-TIE SOLUTIONS, SERVICES AND DELIVERABLES). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SIMPSON STRONG-TIE, THE SIMPSON STRONG-TIE REPRESENTATIVES OR ANY OF SIMPSON STRONG-TIE’S DEALERS OR DISTRIBUTORS SHALL IN ANY WAY MODIFY THIS DISCLAIMER OF WARRANTY. SIMPSON STRONG-TIE MAKES NO WARRANTY THAT THE SIMPSON STRONG-TIE TECHNOLOGIES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SIMPSON STRONG-TIE TECHNOLOGIES OR THE INPUT OR OUTPUT WILL BE FREE FROM ERRORS OR THAT ERRORS WILL BE CORRECTED, THAT THE INPUT OR OUTPUT WILL BE ACCURATE, RELIABLE OR COMPLETE, OR THAT CUSTOMER’S USE OF THE SIMPSON STRONG-TIE SOLUTIONS WILL BE UNINTERRUPTED OR SECURE. CUSTOMER ACKNOWLEDGES THAT SIMPSON STRONG-TIE DOES NOT HAVE CONTROL OVER CUSTOMER’S USE OF THE SIMPSON STRONG-TIE TECHNOLOGIES, AND SIMPSON STRONG-TIE DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH ANY USE OF THE SIMPSON STRONG-TIE TECHNOLOGIES.
Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT WILL SIMPSON STRONG-TIE OR ANY SIMPSON STRONG-TIE AFFILIATE OR REPRESENTATIVE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, DIRECT OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF DATA OR INFORMATION, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, COST OF COVER OR PROCUREMENT OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE SIMPSON STRONG-TIE TECHNOLOGIES (INCLUDING THE SIMPSON STRONG-TIE SOLUTIONS, SERVICES AND DELIVERABLES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATED TO (A) THE USE OF OR INABILITY TO USE, OR ACCURACY OF THE DATA GENERATED BY, OR OUTPUT PRODUCED FROM, THE SIMPSON STRONG-TIE TECHNOLOGIES OR DOCUMENTATION, OR (B) ANY SERVICES OR DELIVERABLES PROVIDED BY SIMPSON STRONG-TIE OR THE USE OF ANY SERVICES OR DELIVERABLES. THIS LIMITATION WILL APPLY EVEN IF SIMPSON STRONG-TIE OR ANY SIMPSON STRONG-TIE AFFILIATE OR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. WITHOUT LIMITING THE FOREGOING, ANY LIABILITY OF SIMPSON STRONG-TIE OR ANY SIMPSON STRONG-TIE AFFILIATE OR REPRESENTATIVE ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID (IF ANY) FOR THE SIMPSON STRONG-TIE TECHNOLOGIES THAT ARE THE SUBJECT OF SUCH CLAIM IN THE PRECEDING TWELVE-MONTH PERIOD. THE WARRANTY DISCLAIMER (SECTION 19(b)) AND LIMITATION OF LIABILITY (SECTION 20) ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIMPSON STRONG-TIE AND CUSTOMER. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES AVAILABLE TO EITHER PARTY.
By Customer. Customer shall indemnify and defend Simpson Strong-Tie and its Affiliates and Representatives, and hold them harmless, from and against any Claims arising from or related to: (i) any breach or alleged breach by Customer or any of its Representatives of any representation, warranty, obligation or other provision of this Agreement; and (ii) any activity, error or omission of Customer or any of its Representatives, either alone or in conjunction with any Third Party, including without limitation any fraud, willful misconduct or negligence; (iii) any use of the Customer Information pursuant to the terms of this Agreement; (iv) Customer’s use of any Simpson Strong-Tie Technologies, including the Simpson Strong-Tie Solutions, Services and Deliverables; and (v) any obligation of Customer specified in Section 6(b) or 7(b).
Assignment. Customer may not assign its rights or delegate its duties hereunder without Simpson Strong-Tie’s prior written consent, which may be withheld in Simpson Strong-Tie’s absolute discretion. This Agreement shall be binding on each Party’s successors and permitted assignees.
Subcontract of Services. Simpson Strong-Tie may subcontract certain portions of the Services to be performed by Affiliates or other Third Parties in connection with this Agreement, provided that no such arrangement shall relieve Simpson Strong-Tie of any of its obligations hereunder.
Change in Services. Simpson Strong-Tie has the right to change, modify, add to or remove any part of the Simpson Strong-Tie Solutions or Services, provided that the basic functionality and quality of the Simpson Strong-Tie Solutions and Services are not materially affected.
Force Majeure. Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a Party’s reasonable control, including disruption of Internet access or public infrastructure, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities, the affected Party, upon giving prompt Notice to the other Party, shall be excused from such performance to the extent of such condition.
Governing Law; Venue. This Agreement is made and shall be governed by and construed in accordance with the Laws of the State of California, excluding its choice of law principles. Exclusive jurisdiction and venue of any actions connected with this Agreement shall be in the state or federal courts residing in the Northern District of California and/or Alameda County, California.
Interpretation. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply to the interpretation of the Agreement. The headings of sections herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction or interpretation of any provision hereof. Whenever the context requires, the use in this Agreement of the singular number shall be deemed to include the plural and vice versa, and each gender shall be deemed to include each other gender. References herein to sections refer to sections of this Agreement, except as otherwise stated. For purposes of this Agreement, each of the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” the word “any” shall be deemed to be followed by the phrase “and all,” and the word “terms” shall be deemed to be followed by the phrase “and conditions.”
Independent Contractors. The Parties are and shall be independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither Party shall make any warranties or representations on behalf of the other Party.
Notice. All notices shall be in writing and sent by regular mail, certified mail, overnight courier, facsimile (if confirmed by mail), or delivered personally to the addresses indicated in the signature block of the applicable Order Form, or such other address as either Party may indicate by at least ten (10) days prior notice to the other Party. Except as otherwise specified by a Party, notices shall be sent to the attention of the person identified in the signature block of any applicable SOW. Notice shall be effective on the date shown on the delivery receipt or facsimile confirmation or, in the case of regular mail, actual receipt.
Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The Parties agree to reform or replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
No Third Party Beneficiaries. Simpson Strong-Tie and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no Third Party beneficiaries to this Agreement.
Export. Customer acknowledges that the Simpson Strong-Tie Solutions may be subject to United States export controls. Customer agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export of the Simpson Strong-Tie Solutions, or any technical information about the Simpson Strong-Tie Solutions, without fully complying with this Agreement, the United States Export Administration Act, any regulation thereunder, and all other applicable Laws.
Use of Marks. No right to use any of the Simpson Strong-Tie Marks is granted under this Agreement. Simpson Strong-Tie reserves all right, title and interest in its Marks, and any goodwill associated therewith.
Publicity. Neither Party shall issue publicity or general marketing communications concerning the other Party without such other Party’s prior written approval.
Dispute Resolution. If any controversy, dispute or claim arises between the Parties with respect to this Agreement, the Parties shall make good faith efforts to resolve such matters informally. In the event a dispute arising out of or relating to this Agreement is not settled between the Project Managers for the Parties, then the Parties shall escalate the dispute for resolution by authorized executive officers of Simpson Strong-Tie and Customer. If the dispute is not resolved informally, the Parties agree that any disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration as set forth below. Any mediation or arbitration shall be initiated and conducted in San Francisco, California, and any arbitration shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the Effective Date of this Agreement, including Rules 16.1 and 16.2 of those Rules. Either Party may commence mediation by providing to JAMS and the other Party a written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The Parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their Affiliates, agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either Party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the Parties so desire. At no time prior to the Earliest Initiation Date shall either Party initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the Parties, including Section 22(o) below. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements of this Section. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The Parties will take such action, if any, required to effectuate such tolling.
Equitable Remedies. The Parties acknowledge and agree that a violation of Section 3 or 17 of this Agreement by Customer, will cause irreparable harm to Simpson Strong-Tie which would not be adequately compensated by monetary damages, and that in addition to other relief, Simpson Strong-Tie shall be entitled to initiate a court action and obtain injunctive relief, without the necessity of posting a bond or other security, to prevent any actual or threatened violation of any such provision.
Entire Agreement; Waiver. This Agreement (including any Exhibits, Order Forms and SOWs) sets forth the entire understanding and agreement of the Parties, and supersedes any oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement. Only a subsequent agreement signed by both Parties may change this Agreement. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach. The terms of any purchase order or other ordering document issued by Customer in connection with this Agreement that are in addition to or inconsistent with the terms of this Agreement shall not be binding and shall not be deemed to modify this Agreement unless agreed to in writing by an authorized Representative of Simpson Strong-Tie. In the event of any conflict or inconsistency in the interpretation of this Agreement, such conflict or inconsistency shall be resolved by giving precedence first to the applicable Order Form or SOW, then to these Standard Terms and Conditions, then to the Exhibits, unless otherwise expressly provided in such documents.
Counterparts. This Agreement may be executed in any number of counterparts, including facsimile or scanned PDF documents, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
“Affiliate” of a specified Person means any Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the specified Person.
“Aggregated Data” means data that contains no Personal Information or any other data that identifies Customer or any other Person.
“Agreement” means the Standard Terms and Conditions to which this Exhibit is attached, and any Exhibits, Order Forms and Statements of Work.
“Application Services” means Simpson Strong-Tie’s provision of Software to Customer as a Service pursuant to any Exhibit, Order Form or other Statement of Work.
“Authorized Users” means any of Customer’s employees who shall have been assigned a User ID for the Application Services or who shall have been provided with access to any Licensed Software pursuant to a License; provided, however, that Customer may only have as many User IDs or users for any Simpson Strong-Tie Solution as the number specified on the applicable SOW.
“Change Order” has the meaning ascribed to it in Section 10.
“Change Request” has the meaning ascribed to it in Section 10.
“Claims” means any claims, demands, actions, causes of action, prosecutions, suits, proceedings, damages, assessments, losses, liabilities, judgments, awards, fines, sanctions, taxes, levies, penalties, interest, charges, costs and expenses, including any reasonable attorney fees, expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding.
“Completion Date” has the meaning ascribed to it in Section 13.
“Confidential Information” means any information or materials disclosed, directly or indirectly, either orally, in writing or through visual inspection, which information includes, without limitation, financial information, business information, product information, technical information, customer information, operating practices, pricing and fee structures, and any other proprietary and confidential information; provided, however, that Confidential Information does not include any of the foregoing that: (i) has become generally known to the public or to other Persons who can obtain economic value from disclosure or use of the information; (ii) was in the Recipient’s possession or known by Recipient prior to the date of disclosure by the Disclosing Party, as proven by reasonably satisfactory evidence; (iii) becomes lawfully available to the Recipient from a source other than the Disclosing Party or a Person under a duty of nondisclosure to the Disclosing Party; (iv) is required to be disclosed by Recipient to comply with applicable Laws; or (v) is authorized for public dissemination by an authorized executive officer of Disclosing Party, as evidenced by written records.
“Control” (including the phrases “Controlled by” and “under common Control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Correct” means, with respect to an Error or Deficiency, making a modification or addition to the Simpson Strong-Tie Solutions or Deliverables that, when made or added to the Simpson Strong-Tie Solutions or Deliverables, renders the Simpson Strong-Tie Solutions or Deliverables in substantial conformity with the applicable Documentation and/or SOW.
“Correction Plan” has the meaning ascribed to it in Section 13.
“Customer Confidential Information” means Customer’s Confidential Information, including Customer Information, Customer Data, marketing plans, strategies, forecasts, projections and other confidential information about Customer’s business.
“Customer Data” means any of Customer’s data that is Uploaded for use in connection with the Simpson Strong-Tie Solutions.
“Customer Information” means any information provided by Customer to Simpson Strong-Tie, including Customer Overall Designs, Customer Data and Customer Confidential Information.
“Customer Marks” means trademarks, service marks, trade names, and logos used by Customer to identify its products and/or services.
“Customer Overall Designs” means the overall building design, general truss information, load specifications and any other applicable designs.
“Deficiency,” with respect to Services, means any material failure of the Services, including any Deliverables, to comply substantially with the applicable SOW or the terms of this Agreement.
“Deliverables” means any report or other documents or materials that Simpson Strong-Tie is obligated to provide to Customer pursuant to any SOW, including any Truss Services Deliverables.
“Designated System” means any computer server(s) and systems identified in writing by Customer to Simpson Strong-Tie; provided that such servers and systems shall meet or exceed the Minimum System Requirements.
“Disabling Codes” means any malicious codes, expiration codes, response codes, viruses, programming routines, worms, date or time bombs, back doors, booby traps, trap doors or other codes placed therein for the purpose of causing Simpson Strong-Tie Solutions to cease operation, or to damage, interrupt or interfere with use of or access to Simpson Strong-Tie Solutions or any associated hardware or data.
“Disclosing Party” means a Party that makes Confidential Information available to the other Party.
“Documentation” means any user manuals and documentation, user guides and any other operating, training, and reference manuals relating to the use of the Simpson Strong-Tie Solutions, and any instructions or on-line help files supplied by Simpson Strong-Tie to Customer.
“Due Date” has the meaning ascribed to it in Section 14(c).
“Error” means any reproducible and verifiable failure of the Simpson Strong-Tie Solutions to operate in all material respects in accordance with the Documentation.
“Error Report” means any report of an Error by Customer to Simpson Strong-Tie that shall have been submitted by email to the applicable e-mail address provided by Simpson Strong-Tie to Customer.
“Exhibit” means any of the Exhibits attached to this Agreement.
“Expenses” has the meaning ascribed to it in Section 14(b).
“Fees” has the meaning ascribed to it in Section 14(a).
“Initial Term” means the initial term specified in the applicable SOW or, if no initial term is specified, one (1) year.
“Input” means all data, designs, specifications, product selection, requirements and any other information that is Input or Uploaded into the Simpson Strong-Tie Solutions.
“Intellectual Property Rights” means any rights with respect to intellectual property, including: patents, patent applications and other rights related to patents; copyrights, rights to register copyrights, copyright registrations and other rights related to copyrights; trademarks, service marks, rights to register trademarks and service marks, trademark and service mark registrations and other rights related to trademarks and service marks; know-how and trade secrets and other rights related to confidential or proprietary information; other intellectual property and industrial property rights, whether or not subject to statutory registration or protection; and all rights under any license or other agreement or arrangement with respect to the foregoing. “Internal Business Purposes,” with respect to the Simpson Strong-Tie Solutions, means any use of the Simpson Strong-Tie Solutions to process Customer’s data, or to meet their internal or operational needs.
“Law” means any applicable common law, statute, code, regulation, rule, ordinance or judicial decision.
“License” means the license granted to Customer in Section 2(a).
“License Fees” means the monthly fees or other fees for any Licensed Software specified in any Exhibit, Order Form or other Statement of Work.
“Licensed Software” means the Object Code for the Licensed Software identified in any Exhibit, Order Form or other Statement of Work pursuant to which Customer licenses Licensed Software from Simpson Strong-Tie, and any Updates and Documentation thereto; provided, however, that the Licensed Software shall not include any Source Code.
“License Term” means the period of time when Customer shall have paid all License Fees for the Licensed Software.
“Minimum System Requirements” means any minimum requirements for Third Party Hardware and Software set forth in the Documentation or any SOW.
“Notice” has the meaning ascribed to it in Section 17(h).
“Notice of Noncompliance” has the meaning ascribed to it in Section 13.
“Object Code” means any executable Software code produced by a compiler or assembler.
“Objection” has the meaning ascribed to it in Section 13.
“Order Form” means any document that shall have been executed by the Parties pursuant to which the Customer contracts for Licensed Software or Services.
“Output” means all information, data, designs, results, specifications, product selection, reports and other Output from the Simpson Strong-Tie Solutions.
“Party” means Simpson Strong-Tie or Customer.
“Person” means a natural person, partnership, trust, estate, association, corporation, limited liability company or other entity or person, whether domestic or foreign.
“Personnel” means Simpson Strong-Tie’s employees or contractors who perform Services.
“Personal Information” means any information that can be used to identify, contact or locate a natural person, including name, address, telephone number, email address, social security number, driver’s license number, and credit card information.
“Output” means all information and output from the Simpson Strong-Tie Solutions, including any designs, specifications, product selection and reports.
“Prohibited Information” means information that contains Personal Information (except as otherwise expressly provided in any SOW) or information that is obscene, threatening, libelous, defamatory, harassing, malicious, offensive or otherwise in violation of any Law, including information that infringes or misappropriates any Intellectual Property Right.
“Project Manager” has the meaning ascribed to it in Section 7(c).
“Recipient” means a Party that shall have received or been provided with access to Confidential Information disclosed or owned by the other Party.
“Renewal Term” has the meaning ascribed to it in Section 18(a).
“Representatives” means, with respect to a Party, such Party’s directors, officers, Affiliates, employees, agents, consultants and independent contractors; provided that, for purposes of this Agreement, neither Party shall be considered or deemed to be a Representative of the other Party or any of the other Party’s Affiliates.
“Sealed Engineering Services” means all engineering services provided by Simpson Strong-Tie in connection with the Simpson Strong-Tie Solutions or the Simpson Strong-Tie truss products, as further defined in Section 6.
“Sealed Engineering Deliverables” means any truss placement diagrams, individual truss designs or other documents, drawings or materials provided to Customer by Simpson Strong-Tie as part of any Sealed Engineering Services and that are stamped with a professional engineering seal.
“Seat” means any computer or any number of authorized computers specified by Simpson in writing.
“Services” means any Application Services, Sealed Engineering Services, Truss Design Services, Software Support Services or other services provided by Simpson Strong-Tie pursuant to any SOW.
“Simpson Strong-Tie” means Simpson Strong-Tie Company Inc.
“Simpson Strong-Tie Confidential Information” means Simpson Strong-Tie’s Confidential Information, including the Simpson Strong-Tie Technologies, Simpson Strong-Tie Solutions, Work Product, Licensed Software, Documentation, trade secrets, formulas, data, designs, ideas, concepts, know-how, inventions, techniques, methodologies, marketing plans, strategies, forecasts and other confidential information about Simpson Strong-Tie’s business.
“Simpson Strong-Tie Marks” means trademarks, service marks, trade names and logos used by Simpson Strong-Tie to identify its products and/or services.
“Simpson Strong-Tie Solutions” means the Application Services and Licensed Software.
“Simpson Strong-Tie Technologies” means the Simpson Strong-Tie Solutions, Services and Work Product, and any revisions, modifications, enhancements and derivative works thereof, and all Intellectual Property Rights related thereto.
“Software” means any complete sequence of automatic data processing equipment instructions and all other computer software, programs or code of any kind, including Source Code, Object Code, application programs and software, mobile applications and apps, systems programs and software, modules, routines, graphical user interfaces, application programming interfaces, databases, libraries, subdivisions such as assemblers, compilers, routines, generators and utility programs, test programs, scripts, macros, and any other executable code or instructions, including any Updates related to any of the foregoing.
“Software Support Services” means the Services set forth on any Exhibit, Order Form or other Statement of Work that requires Simpson Strong-Tie to perform Services related to support or maintenance of the Simpson Strong-Tie Solutions.
“Source Code” means any Software written by any Person, including a text listing of program instructions or commands.
“Statement of Work” or “SOW” means any document signed by both Parties that sets forth the Services to be performed by Simpson Strong-Tie, including any Exhibit or Order Form.
“Term” means the Initial Term and any Renewal Term, unless earlier terminated pursuant to Section 18(b) or 18(c).
“Third Party” means any Person other than Simpson Strong-Tie and Customer.
“Third Party Hardware and Software” means any computers, servers, network components, cabling, peripherals, hardware, devices, parts, equipment, and any Software other than the Simpson Strong-Tie Solutions, including any operating systems, database products and application software.
“TPI Obligations” has the meaning ascribed to it in Section 6.
“Truss Design Deliverables” means any truss placement diagrams, individual truss designs or other documents, drawings or materials provided to Customer by Simpson Strong-Tie as part of any Truss Design Services performed by Simpson Strong-Tie.
“Truss Design Services” means any non-engineering, truss design services performed by Simpson Strong-Tie in connection with the Simpson Strong-Tie Solutions or the Simpson Strong-Tie truss products, as further defined in Section 7.
“Truss Services” means, collectively, any Sealed Engineering Services and any Truss Design Services.
“Truss Services Deliverables” means, collectively, any Sealed Engineering Deliverables and any Truss Design Deliverables.
“Update” means any update, new release, new version, module, enhancement, improvement, modification, addition, bug fix, patch, correction, or derivative work related to Licensed Software that Simpson Strong-Tie makes generally available as part of its standard Software Support Services to other licensees of the same Licensed Software.
“Upload” means to communicate, process, send, store, upload, input, provide, post or transmit.
“User ID” means a unique user identification name and password for access to and use of the Simpson Strong-Tie Solutions.
“Work Product” means any Simpson Strong-Tie Solutions, inventions, designs, creations, tools, processes, methods, technical developments, improvements, enhancements, ideas, concepts, discoveries, formulas, engines, tools, algorithms and any other work of authorship conceived, originated, made, developed, authored or reduced to practice by Simpson Strong-Tie, alone or with others, in connection with the Simpson Strong-Tie Solutions or the Services provided pursuant to this Agreement; provided, however, that Work Product does not include any Customer Information.