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Deltek Specpoint™ BPM Agreement Terms
This Deltek Specpoint™ BPM Agreement is entered into by and between and Deltek, Inc. (“Deltek”), and the party identified on the partner acknowledgement form. With respect to MASTERSPEC® Deltek enters this Agreement for itself and on behalf of The American Institute of Architects (“AIA”). 1. DEFINITIONS 1.1 “Acknowledgement Form” means the document signed by Customer acknowledging and agreeing to these terms and conditions. 1.2 “Authorized User”: An employee or member of Customer’s organization, or a contractor hired by the Customer for a project involving the use of the Deltek Services. Customer is responsible for verifying that its Authorized Users are properly authorized in accordance with applicable law, regulatory requirements, and obligations under this Agreement. 1.3 “Customer Content” means Customer’s specifications, data, graphics, text and audio content, information or material that Customer owns, or has a license to publish, which is incorporated into or uploaded into Specpoint. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, privacy and maintenance, and copyrights of all Customer Content. 1.4 “Customer Representative” means a Deltek authorized business partner who will be available to assist the Customer to coordinate the upload, approval, and update of Premium Product Listings and Customer information. The Customer Representative will be available to answer questions, coordinate communications, and track progress throughout the onboarding process. 1.5 “Dispute” means any dispute or claim arising out of or related to this Agreement. 1.6 “Effective Date” means the date of execution of the Customer’s Acknowledgement Form. 1.7 “End Users” means design and specification professionals (also referred to as “Specifiers”) that are permitted recipients of the Customer Content. 1.8 “Mark” means a registered or unregistered trademark, service mark, trade name, logo, service name, or other proprietary marking. 1.9 “MasterSpec®” means the specification content database owned by the AIA and distributed by Deltek and its representatives. 1.10 “Onboarding Specialist” means the Deltek professional who will be available to initially inform the Customer’s team on the editing process. The Onboarding Specialist will review Customer’s proposed edits and transfer them to the Proprietary Premium Listing and the correct locations in accordance with MasterSpec writing guidelines. 1.11 “Premium Product Listings” Premium Product Listings include MasterSpec content, which is copyrighted by the AIA and is exclusively published by Deltek for the AIA. MasterSpec® is a registered trademark of the AIA. Premium Product Listings give Specifiers access to additional product data. Premium Product Listings are accessible through the specification development features of the Specpoint to which Specifiers subscribe.Premium Product Listings may include links to the company site for that product, product flyers, data sheets, or testing and certification reports. Premium Product listings are confined to a single product family. 1.12 “Premium Proprietary Product Listing” means listings developed in instances when there is not a relevant base AIA MasterSpec section available from which to base the Premium Product Listing. The Premium Proprietary Product Listings is tailored solely to the Customer’s product and are confined to a single Product Type. A Specpoint subscription is required to continue using the Premium Proprietary Product Listing. 1.13 “Product Listings” means Premium Product Listings or Premium Proprietary Product Listings publicly accessible with download links to product specification documents. 1.14 “Product Type” means a grouping of construction products within a family of construction products that contain the same or similar attributes and performance. 1.15 “Services” means, Deltek Specpoint application provided as SaaS that is ordered by Customer. 1.16 “Specpoint” means Deltek’s “cloud based” specification authoring, management and design automation software which leverages the MASTERSPEC® content. 1.17 “Subscription Period” means the time a Customer may make authorized use of Specpoint as described in Customer’s order document with a Deltek Partner or representative. 1.18 “The Construction Specifications Institute, Inc. Copyright” means the notice applicable to MasterSpec® and incorporated therein as follows: means © 2021 The Construction Specifications Institute, Inc. (CSI). MASTERFORMAT®, OMNICLASS® and UNIFORMAT® numbers and titles are used by Deltek, Inc. under license (http://www.csiresources.org). 2. PERMITTED USES OF THE PRODUCT During the Subscription Period of the Agreement, Customer may submit edits for review and approval to the content of the Product Listings to accommodate Customer Content changes, additions or deletions. Customer may access the Specpoint platform and Customer may upload Customer Content to the Specpoint platform via the internet. Customer agrees to provide any edits or changes to the Product Listings to Deltek for review and approval. Any approval of such edits and changes are at Deltek’s sole discretion prior to distributing or publishing any Customer Content. The Subscription is valid for up to ten products per Product Listing. 3. USE RESTRICTIONS Except as this Agreement expressly permits, Customer shall not, and shall not permit any other individual or entity to: 4. CUSTOMER RESPONSIBILITY. 4.1 Cooperation. Customer acknowledges and agrees that delivery of the Product Listings may require additional information from Customer and the failure by Customer to respond to Deltek, a Customer Representative, the Onboarding Specialist, or Deltek’s authorized partners or representatives inquiring about such additional information may delay the delivery of Specpoint. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, privacy and maintenance, and copyrights of all Customer Content. Customer agrees to promptly notify Deltek in writing if Customer becomes aware of: 4.2 Password Access. Customer is solely responsible for maintaining the confidentiality of passwords used to access Specpoint and for restricting its use of Specpoint to only those parties authorized to access Specpoint in accordance with these Terms and Conditions. Deltek assumes no responsibility for access granted improperly by Customer to unauthorized parties. Customer is responsible for the security of Specpoint with respect to all activity by Customer or any Authorized User that occurs under Customer’s Specpoint account. Customer will use reasonable efforts to take prompt remedial measures to rectify such unauthorized access to the extent within its control. Deltek, upon the discovery of a credible security threat from a malicious actor that could threaten the security and integrity of Specpoint and/or Deltek’s network, may immediately disconnect any remote connections to its network until such time as the threat has been eradicated and recovery and restoration is at an acceptable level as determined by Deltek in its discretion. 4.3 Improper Use. During the Subscription Period, Customer shall take commercially reasonable measures to safeguard Specpoint from infringement, misappropriation, theft, misuse or unauthorized access. Deltek reserves the right to deactivate or suspend Customer's or any Authorized User access if use of the Services is found or reasonably suspected, in Deltek's judgment, to degrade or otherwise interfere with Specpoint’s operation or other system performance or that violate the use restrictions set forth in these terms. 5. CUSTOMER LIMITED LICENSE GRANT TO DELTEK Subject to the terms and conditions of this Agreement, Customer hereby grants to Deltek a terminable, revocable, worldwide, non-exclusive, non-transferable subscription to store, index, display, perform, distribute, and reproduce the Customer Content within Specpoint and to make the Customer Content available to visitors and other users of Specpoint. This license grant includes the rights to: (i) promote the Customer Content in connection with promotions of Specpoint in any media; (ii) to use and reproduce Customer’s logos, trade names, trademarks, and service marks within Specpoint and in any media in connection with the promotion of Specpoint; and (iii) to sublicense the Customer Content to an End User, without any obligation of compensation, credit or attribution to the posting party. Deltek may, in its sole discretion, (a) display and/or categorize the Customer's Content in any section, mini-page or sub-category of the Product Listings; and (b) modify the display and/or categorization within the Product Listings at any time. At any time, Customer shall have the right to request that Deltek discontinue the distribution of some or all of the Customer Content. Upon receipt of written notice of suspension or revocation of a particular Customer’s Content, Deltek will suspend, within a reasonable period of time, distribution of such Customer Content. For the avoidance of doubt, Customer retains ownership and title to all of Customer’s intellectual property rights, including all of its patent rights, copyrights, trademarks, tradenames, service marks, trade dress, know-how, trade secret or other intellectual property rights. 6. GENERAL TERMS AND CONDITIONS 6.1 Limited Warranties. Deltek represents and warrants to the Customer that: (1) any products delivered by Deltek will perform materially as described in these Terms and Conditions, (2) it takes commercially reasonable measures to safeguard Specpoint from infringement and misappropriation, and (3) at the time of delivery Specpoint does not contain any virus or other malicious code. The warranties set forth in this subsection do not apply and become null and void if Customer or any Authorized User breaches any of these Terms and Conditions, or modifies, damages or misuses Specpoint. 6.2 Disclaimer and Limitation of Liability. Unless expressly stated in this Agreement, neither Deltek or its representatives nor the AIA makes any representation or warranty as to (1) the completeness or accuracy of the information presented in Specpoint, (2) that the Product Listings (including the media upon which it is transmitted) will operate in conjunction with any particular software, hardware or operating system, (3) that the Product Listings will not be modified or discontinued, or (4) the accuracy of the results from the interactive-edit version of the Product Listings. Unless expressly stated in this Agreement, the Premium Proprietary Product Listings are made available to Customer “as is” on the condition that Customer will make its own determination as to the Premium Proprietary Product Listings suitability for Customer's purposes before its use within Specpoint. UNLESS EXPRESSLY STATED IN THIS AGREEMENT, THE AIA, DELTEK AND DELTEK REPRESENTATIVES MAKE NO (AND EXPRESSLY DISCLAIM ANY AND ALL) REPRESENTATIONS AND/OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT, PRODUCT LISTINGS, OTHER INFORMATION OR SERVICES PROVIDED OR THE MATERIALS, PRODUCTS, SYSTEMS, OR APPLICATIONS TO WHICH THE INFORMATION REFERS. IN NO EVENT SHALL THE AIA, DELTEK, DELTEK REPRESENTATIVES OR ANY OTHER THIRD PARTY WHO HAS PARTICIPATED IN DEVELOPING, MARKETING, OR DISTRIBUTING THE PRODUCTS, BE LIABLE FOR ANY INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR SPECIAL DAMAGES OR FOR ANY LOSS OF PROFITS INCURRED BY ANY PARTY IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE PRODUCTS. IN ANY EVENT, EXCEPT FOR INDEMNIFICATION OBLIGATIONS ARISING FROM DELTEK’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, DELTEK's AND AIA’s CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE PRODUCTS, OR THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES (INCLUDING SET UP OR EDITING FEES) PAID TO DELTEK BY CUSTOMER DURING THE IMMEDIATELY PRECEEDING TWELVE MONTH PERIOD. Some states do not allow the exclusion or limitation of implied warranties, so the above exclusions or limitations may not apply to Customer. 6.3 Indemnification. Customer shall indemnify, defend and hold harmless Deltek and the AIA from any claim, demand, or damage, including costs and reasonable attorneys' fees, due to or arising out of third party claims related to (a) Customer's use of Specpoint in violation of any term or condition of this Agreement, (b) Customer’s use of Specpoint in combination with any software, hardware, operating system or information prohibited by Deltek in writing, (c) any prohibited edits or modifications made by Customer to Specpoint, (d) Customer’s negligent acts or omissions related to the Customer Content, or (e) any violation or breach by Customer of this Agreement, any applicable law, or any third party rights. 6.4 Dispute. In the event of any Dispute arising from or relating to these Terms and Conditions or the breach thereof, the parties shall endeavor to settle the Dispute. To this effect, the management-level representatives from each party shall consult and negotiate with each other in good faith and attempt to reach a just and equitable solution satisfactory to both parties. If a Dispute is not resolved within sixty (60) days, then the Dispute shall be settled by final and binding arbitration in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules. A single arbitrator appointed as provided in the AAA Commercial Arbitration Rules will be an attorney experienced in computer software, licensing, and information technology disputes. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this Agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in the Washington, DC metropolitan area, or, with the consent of the arbitrator and the parties, another mutually agreeable metropolitan area. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction. 6.5 Termination. Deltek may terminate the provision of Specpoint and these Terms and Conditions upon written notification to Customer in the case of AIA’s discontinuance of its service to Deltek. 6.6 Notice of Access Suspension. Deltek will take reasonable steps to notify customer, where practicable, of any disconnection or suspension of access, without undue delay. 6.7 Confidentiality. In connection with the use of Specpoint and these Terms and Conditions, each party (as the "Disclosing Party") may disclose or make available to the other party (as the "Receiving Party") Confidential Information. "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as "confidential". The Receiving Party agrees to protect and hold all Confidential Information in confidence and in the same manner as the Receiving Party protects the confidentiality of its own proprietary and confidential materials of similar kind, but in no event with less than a reasonable standard of care. Except as otherwise provided herein, the Receiving Party shall not use any Confidential Information for its own benefit, or publish, or otherwise disclose to others, or permit the use by others for their benefit or the detriment of the Disclosing Party; provided, however, that nothing in this Section shall prevent Deltek from collecting information of Customer and aggregating such information with other Deltek customers’ information in a manner that does not identify the name or identity of Customer. 6.8 Governing Law. The laws of the State of Delaware govern this Agreement. 6.9 Compliance. Customer warrants that it will comply with all applicable laws, enactments, regulations, orders, standards and other similar instruments. 6.10 Privacy. For purposes of Processing Personal Data subject to additional legal requirements, including, but not limited to Privacy Laws as defined in the Privacy Terms, Deltek and Customer agree that such Processing will be in accordance with the Deltek General Privacy Terms ("Privacy Terms") located at https://www.deltek.com/DeltekGPT. In the event of conflict between these Terms and Conditions and the Privacy Terms, the Privacy Terms shall prevail. The capitalized terms in this Section have the meaning described in the Privacy Terms. 6.11 Miscellaneous. These Terms and Conditions constitute the entire agreement and understanding between the parties with respect to its subject matter and supersede and replaces any and all prior written or oral agreements. Nothing contained in these Terms and Conditions shall be construed to limit either party’s rights or remedies available at law or in equity. A party’s failure to insist upon or enforce strict performance of any provision shall not be construed as a waiver of any provision or right. 6.12 Assignment. Neither the course of conduct between the parties nor trade practice shall act to modify any provision. Customer may not in whole or part, assign, transfer, novate, subcontract or sublicense any right or obligation under these Terms and Conditions except with Deltek’s prior written consent, and any assignment made in violation of this provision shall be invalid. Each party will comply with applicable laws. 6.13 Changes in Terms and Conditions. Deltek reserves the right to revise these terms and conditions to address changes in law, or in the Specpoint. Such changes will not be enforceable against Customer if they are materially adverse to Customer’s use of Specpoint. Customer’s continued use of Specpoint constitutes agreement to such changes. 6.14 E-mail Communications. Each party shall comply with the U.S. CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713 (“CAN-SPAM Act”) and similar legislation when applicable. Customer consents to receiving email messages from Deltek that may constitute “commercial e-mails” under the CAN-SPAM Act. Customer may at any time “opt out” of receiving future emails from Deltek. 6.15 Independent Contractor. Each party is at all times acting as an independent contractor under this Agreement and not as an agent, employee, joint venturer or partner of the other. 6.16 Notices. Notices will be deemed effectively given: Notices to Deltek must be sent to Deltek, Inc., 2291 Wood Oak Drive, Herndon, VA 20171, Attention: General Counsel, or by email to [email protected] and to Customer via email to the primary contact with Deltek.20211409
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