BuildWorks Canada (“BuildWorks Canada”, “we”, “us”, or “our”, as the context may dictate) welcomes you to its web site (the “Web Site”) which is hosted and maintained by BuildWorks Canada, along with eSolutionsGroup Ltd.

These Terms and Conditions of Acceptable Use (these “Terms of Use”) govern access to and use of the BuildWorks Canada Services (as defined below) by you (the “User”), as well as any individual or entity (including any employees, agents, or contractors) you allow to access and use the BuildWorks Canada Services.

These Terms of Use form your agreement with BuildWorks Canada and govern the use of the BuildWorks Canada Services and are incorporated herein.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU ARE NOT PERMITTED OR AUTHORIZED TO USE THE BUILDWORKS CANADA SERVICES.

If you are a direct competitor to BuildWorks Canada, you may not access or use the BuildWorks Canada Services without BuildWorks Canada’s explicit, advance, written consent, and then only for the purposes authorized in writing.

You agree to receive electronically all communications, agreements, and notices that we provide in connection with any BuildWorks Canada Services, including by e-mail, text, in-app notifications, or by posting them on the Web Site or through any BuildWorks Canada Service.

1. DEFINITIONS

“Account” means a unique account established by User to enable access and use of the BuildWorks Canada Services.

“BuildWorks Canada Services” means the services that can be accessed on the Web Site by User pursuant to these Terms of Use.

“Subscriber Material” means subscription to construction bid opportunity information.

“User” means any individual over the age of eighteen (18) who accepts these Terms of Use and is responsible for ensuring compliance with these Terms of Use. User may be referred to in these Terms of Use as “you” and “your”.

• USAGE AND ACCESS RIGHTS

2.1 Subject to the terms and conditions of these Terms of Use, BuildWorks Canada will provide the BuildWorks Canada Services and grants to you a limited, non-exclusive, non-sublicensable, non-transferable right and license during the Term (as defined below), solely for your internal business purposes, to use the BuildWorks Canada Services.

2.2 You shall not, and shall not permit others to, do the following with respect to the BuildWorks Canada Services:

1. use the BuildWorks Canada Services or allow access to it in a manner that circumvents contractual usage restrictions or that exceeds your authorized use;
2. license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the BuildWorks Canada Services available for access by third parties except as otherwise expressly provided in these Terms of Use;
3. access or use the BuildWorks Canada Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the BuildWorks Canada Services or allow access by a direct competitor of BuildWorks Canada;
4. reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the BuildWorks Canada Services except as expressly permitted elsewhere in these Terms of Use or by law, unless and then only to the extent permitted by applicable law without consent;
5. use the BuildWorks Canada Services (including, without limitation, any content and materials accessible via the BuildWorks Canada Services) in a way that (i) violates or infringes upon, or otherwise misappropriates, the rights of a third party, including those pertaining to contract, intellectual property, privacy or publicity; or (ii) effects or facilitates the storage or transmission of defamatory, libelous, tortious or otherwise unlawful material including, but not limited to, material that is harassing, threatening, illegal or obscene; or
6. interfere with or disrupt the integrity, operation or performance of the BuildWorks Canada Services or interfere with the use or enjoyment of it by others by, among other things, using it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or circumvent or disclose the user authentication or security of the BuildWorks Canada Services or any host, network, or account related thereto or use any aspect of the BuildWorks Canada Services other than those specifically identified on the Web Site, probe, scan, or test the vulnerability of any system or network.

2.3 BuildWorks Canada may suspend any use of the BuildWorks Canada Services, or remove or disable any Account or content that BuildWorks Canada reasonably and in good faith believes violates this Terms of Use. BuildWorks Canada may suspend or otherwise disable your Account without any prior written notice.

• OWNERSHIP

3.1 As between you and BuildWorks Canada, BuildWorks Canada (or its applicable licensor)

1. shall own and retain all right, title and interest in and to any and all copyrights, trademark rights, patent rights, database rights, trade secrets and other intellectual property or other rights in and to the BuildWorks Canada Services (including, without limitation, any and all content and materials accessible via the Web Site or the BuildWorks Canada Services, any improvements or design contributions to or derivative works of any of the foregoing, and any knowledge or processes related to any of the foregoing and/or provided by or on behalf of BuildWorks Canada hereunder, and
2. shall own and retain all right, title and interest in and to any and all data that BuildWorks Canada
3. generates in connection with the operation of the Site and/or provision of the BuildWorks Canada Services, or
4. is provided to BuildWorks Canada hereunder. Except for the limited rights expressly granted to you under these Terms of Use, no right or license is granted to you in or to any of the foregoing, and BuildWorks Canada hereby expressly reserves all rights not explicitly granted to you under these Terms of Use
5. USER DATA, PERSONAL INFORMATION, AND DATA PROTECTION

4.1 You shall be responsible for any data or information, including any Personal Information (as defined in BuildWorks Canada’s Privacy Policy www.BuildWorksCanada.ca/about/privacy-policy/ that you provide or use through your use of the BuildWorks Canada Services. Further, you are solely responsible for determining the suitability of the BuildWorks Canada Services for your business or organization and complying with any regulations, laws, or conventions applicable to User data and your use of the BuildWorks Canada Services.

4.2 You hereby warrant that your collection and use of any Personal Information contained in User data complies with all applicable data privacy and protection laws, rules, and regulations.  You hereby authorize BuildWorks Canada to process such personal data in accordance with the applicable data protection laws, rules, and regulations.

4.3 You hereby consent to BuildWorks Canada’s collection, use and disclosure of your data (including without limitation Personal Information pertaining to you or that you provide) as described in the BuildWorks Canada Privacy Policy www.BuildWorksCanada.ca/about/privacy-policy/which describes, among other things, the use of data to monitor and enforce compliance with these Terms of Use.

• TERM AND TERMINATION

The term of these Terms of Use begins on the date you accept it and continues until your use of the BuildWorks Canada Services ceases (including as a result of termination in accordance with this Section 5), whichever is later (the “Term”). You agree that termination of these Terms of Use and termination of access to the BuildWorks Canada Services and the Web Site is User’s sole right and remedy with respect to any dispute with BuildWorks Canada. This includes, but is not limited to, any dispute related to, or arising out of:

• any term of these Terms of Use or BuildWorks Canada enforcement or application of these Terms of Use;
• any policy or practice of BuildWorks Canada, including, without limitation, the enforcement or application of these policies;
• the content available through BuildWorks Canada or any changes in content; or
• User’s ability to access and/or use the BuildWorks Canada Services. Notwithstanding the foregoing, sections 5, 6, 7, 8, and 9 of these Terms of Use shall survive the termination of these Terms of Use.
• WARRANTIES AND DISCLAIMERS

6.1 You hereby represent and warrant to BuildWorks Canada that:

(a) you have all requisite rights and authority to use the BuildWorks Canada Services under these Terms of Use and you have, and will maintain, the irrevocable and unconditional right, power and authority to grant all applicable rights and licenses granted to BuildWorks Canada herein;

(b) use by BuildWorks Canada and its affiliates, in accordance with these Terms of Use, of Subscriber Material provided by you will not infringe, misappropriate, or otherwise violate any intellectual property or other right of any person or entity;

(c) you are responsible for all use of the BuildWorks Canada Services associated with your Account;

(d) you are solely responsible for maintaining the confidentiality of your Account names and password(s);

(e) you agree to immediately notify us of any unauthorized use of your Account of which you become aware;

(f) you agree that BuildWorks Canada will not be liable for any losses incurred as a result of a third party’s use of your Account, regardless of whether such use is with or without your knowledge and consent;

(g) you are unaware of any improper or illegal use to the BuildWorks Canada Services;

(h) you will use the BuildWorks Canada Services (including, without limitation, all content and materials accessible via the BuildWorks Canada Services) for lawful purposes only and subject to these Terms of Use;

(i) any information you submit to BuildWorks Canada is true, accurate, and correct;

(j) you will not attempt to gain unauthorized access to the Web Site or the BuildWorks Canada Services, other accounts, computer systems, or networks under the control or responsibility of BuildWorks Canada through hacking, cracking, password mining, or any other unauthorized means; and

(k) that you are of the age of majority in AB.

6.2 THE BUILDWORKS CANADA SERVICES, DOCUMENTATION, AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BUILDWORKS CANADA: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE BUILDWORKS CANADA SERVICES, DOCUMENTATION OR WEB SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE BUILDWORKS CANADA SERVICES, DOCUMENTATION OR WEB SITE.  YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BUILDWORKS CANADA TO ANY THIRD PARTY.  USE OF THE BUILDWORKS CANADA SERVICES, DOCUMENTATION AND WEB SITE ARE AT YOUR SOLE RISK.

6.3 Notwithstanding the foregoing, in the event that any applicable law does not allow limitations on implied warranties, then any warranties are limited to the maximum extent permitted by, and for the minimum warranty period allowed by the mandatory applicable law.

• USER INDEMNIFICATION OBLIGATIONS

You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to any:

(a) use of the BuildWorks Canada Services by you;

(b) violation of these Terms of Use by you (including, without limitation, breach of any of your representations and warranties set forth in Section 6.1 above); or

(c) infringement, misappropriation or other violation of any intellectual property or other right of any person or entity by you. You waive all rights to bring a claim in defamation for any errors or omissions in the information posted about or by you or any other party on the Web Site.

• LIMITATIONS OF LIABILITY

8.1    NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OF USE, BUILDWORKS CANADA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.

8.2    OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION OR ELSEWHERE IN THIS AGREEMENT), UNLESS PROVIDED FOR ELSEWHERE IN A MASTER AGREEMENT. WE LIMIT OUR LIABILITY TO YOU TO THE GREATER OF $100 CAD OR THE AMOUNT OF TOTAL MEMBERSHIP FEES INVOICED BY BUILDWORKS CANADA DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED.

8.3    Each provision of these Terms of Use that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms of Use between the parties.  This allocation is reflected in the pricing offered by BuildWorks Canada to you and is an essential element of the basis of the bargain between the parties.  Each of these provisions is severable and independent of all other provisions of these Terms of Use, and each of these provisions will apply even if the warranties in these Terms of Use have failed of their essential purpose.

• CONFIDENTIALITY

9.1 “Confidential Information” means any trade secrets or other information of BuildWorks Canada, whether of a technical, business, or other nature, that is disclosed to you (“Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure.  Confidential Information does not include any information that:

(a) was known to Recipient before receiving it from the disclosing party;

(b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party;

(c) is acquired by Recipient from another source that did not receive it in confidence from the other party to these Terms of Use; or

(d) is or becomes part of the public domain through no fault or action of Recipient.

9.2  During and after the Term, Recipient will:

(a) use the Confidential Information of the other party only for purposes that are within the scope of these Terms of Use;

(b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors, consultants and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and

(c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.  Notwithstanding the foregoing, User expressly authorizes BuildWorks Canada to use and process data as described in the BuildWorks Canada Privacy Policy www.BuildWorksCanada.ca/about/privacy-policy/

9.3 If Recipient is required by law to disclose Confidential Information of the other party or the terms of these Terms of Use, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.

9.4 Recipient acknowledges that, subject to Section 3 and as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing party.  Except as provided in Section 3, nothing in these Terms of Use grants Recipient any right, title or interest in or to any of the disclosing party’s Confidential Information.  Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.

9.5 Recipient acknowledges that any actual or threatened breach of this Section 9 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain.  Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of these Terms of Use or damages that may otherwise result from those breaches.  Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 9, has the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 9.

9.6 If you provide BuildWorks Canada with confidential Subscriber Material, you agree to provide notice in accordance with Section 10.4 or through the Web Site as specifically instructed and permitted by BuildWorks Canada.

1. GENERAL

10.1 Independence. At all times, the parties are independent contractors, and are not the agents or representatives of the other.  These Terms of Use are not intended to create an employment relationship, joint venture, partnership, or franchise relationship between the parties.  Non-parties do not benefit from and cannot enforce these Terms of Use.  There are no third-party beneficiaries to these Terms of Use.  You must not represent to anyone that you are an agent of BuildWorks Canada or are otherwise authorized to bind or commit BuildWorks Canada in any way without BuildWorks Canada’s prior written authorization.

10.2 Third Party Content.  We may provide, or third parties may provide, links to other third-party web sites or resources that are beyond our control.  We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us with respect to such sites.  BUILDWORKS CANADA IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE.  Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Web Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner.  You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Web Site.

10.3 Assignability.  You may not assign your rights or obligations under these Terms of Use without BuildWorks Canada’s prior written consent.  If consent is given, these Terms of Use will bind your successors and assigns.  Any attempt by you to transfer your rights, duties, or obligations under these Terms of Use except as expressly provided in these Terms of Use is void.  BuildWorks Canada may freely assign its rights, duties, and obligations under these Terms of Use.

10.4  Notices.  Except as otherwise permitted by these Terms of Use, any notice required or permitted to be given in accordance with these Terms of Use will be effective only if it is in writing and sent using: (a) the Web site; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth on the Web Site for BuildWorks Canada.  Either party may change its address for receipt of notice by notice to the other party.  Notices are deemed given upon receipt if delivered using the Web Site or the BuildWorks Canada Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.

10.5  Force Majeure.  Except for any payment obligations, neither party will be liable for failure to perform any obligation under these Terms of Use to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control).  The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable.  Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.

10.6 Waiver.  The waiver by either party of any breach of any provision of these Terms of Use does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms of Use will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms of Use.

10.7 Severability.  If any part of these Terms of Use are found to be illegal, unenforceable, or invalid, the remaining portions of these Terms of Use will remain in full force and effect.  If any material limitation or restriction on the grant of any license to you under these Terms of Use is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

10.8 Governing Law. These Terms of Use shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and shall be treated in all respects as a Alberta contract. You irrevocably submit and attorn to the exclusive jurisdiction of the Province of Alberta and acknowledge the competence of such courts in the event of a claim and irrevocably agree to be bound by a judgment of such court.

10.9 Entire Agreement.  These Terms of Use, which includes the language and paragraphs preceding Section 1, is the final, complete, and exclusive expression of the agreement between the parties regarding the BuildWorks Canada Service(s) provided under these Terms of Use.  These Terms of Use supersede and the parties disclaim any reliance on previous oral or written communications (including any confidentiality agreements pertaining to the BuildWorks Canada Services under these Terms of Use) with respect to the subject matter hereof and apply to the exclusion of any other terms that the User seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. BuildWorks Canada hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by User and conditions assent solely based on the terms and conditions of these Terms of Use as offered by BuildWorks Canada. Except as explicitly permitted in these Terms of Use, no modification or amendment of these Terms of Use shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted.