Society of Facility Engineers’ User Agreement
This User Agreement (“Agreement”) is an agreement between Society of Facility Engineers, and the party set forth in the related Registration Form (“User” or “You” and “Your”) incorporated herein by reference (together with any subsequent Registration Forms or other online signup, acceptance or order form submitted by User, the “Registration Form”), and applies to the purchase of all Membership Services ordered by User on the Registration Form (collectively, the “Membership Services”). As used herein the term “User” and “You” shall also include any and all users, Customers, subscribers, affiliates (including without limitations Users or non-Users to whom Society of Facility Engineers provides links or banners to promote the Membership Services or products of Society of Facility Engineers or any third party the Membership Services or products of which are offered by or obtained through or in connection with Society of Facility Engineers), resellers or others (i) who sign up for, use or obtain Membership Services or products from Society of Facility Engineers or from any third party Membership Services or products of which are offered by or obtained through or in connection with Society of Facility Engineers, or (ii) who visit the Web sites of Society of Facility Engineers or of any such third party.
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE MEMBERSHIP SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE MEMBERSHIP SERVICE DESCRIPTION AND THIS USER AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING OUR ACCEPTABLE USE POLICY. YOUR USE OF THE MEMBERSHIP SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
- Acceptable Use Policy.
Under this Agreement, User shall comply with Society of Facility Engineers’ then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Society of Facility Engineers, and other agreements and which is incorporated in this Agreement by reference. User hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Notwithstanding anything to the contrary contained in this Agreement, Society of Facility Engineers may immediately take corrective action disconnection or discontinuance of any and all Membership Services, or termination of this Agreement in the event of notice of possible violation by User of the AUP. In the event Society of Facility Engineers takes corrective action due to a violation of the AUP, Society of Facility Engineers shall not refund to User any fees paid in advance of such corrective action. User hereby agrees that Society of Facility Engineers shall have no liability to User due to any corrective action that Society of Facility Engineers may take (including, without limitation, suspension, termination or disconnection of Membership Services).
- Term; Termination; Cancellation Policy.
- The initial term of this Agreement shall be as set forth in the Purchase Agreement or Registration Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Membership Services to User, and after the Initial Term, this Agreement shall continue for successive periods (or renewal period) of equal length as the Initial Term OR SUCH OTHER TERM AND PRICE THAT SHALL BE SET FORTH IN A NOTICE TO THE CUSTOMER AT LEAST 24 hours PRIOR TO the commencement of such successive period or RENEWAL period. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE or renewal PERIODS, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
- This Agreement may be terminated or cancelled;
- at anytime by either party (Including by You, if you receive notice of an amendment to this Agreement) by giving the other party thirty (30) days prior written notice. Due to the costs associated with processing payments we are not able to offer refunds.
- by Society of Facility Engineers in the event of nonpayment by User,
- by Society of Facility Engineers, at any time, without notice, if, in Society of Facility Engineers’ sole and absolute discretion and/or judgment, User is in violation of any term or condition of this Agreement and related agreements, AUP, or User’s use of the Membership Services disrupts or, in Society of Facility Engineers’ sole and absolute discretion and/or judgment, could disrupt, Society of Facility Engineers’ business operations and/or
- by Society of Facility Engineers as provided herein.
- If You cancel this Agreement, upon proper notice to Society of Facility Engineers, prior to the end of the Initial Term or any successive period (or renewal period) thereafter,
- You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
- Society of Facility Engineers does not refund to You all fees for Membership Services after effectiveness of, less any setup fees, cancellation fees. If your plan includes a free domain name, a fee for the domain and any applicable taxes will be deducted from your refund. and/or
- Any cancellation request shall be effective thirty (30) days after receipt by Society of Facility Engineers, unless a later date is specified in such request.
- Society of Facility Engineers may terminate this Agreement, without penalty,
- if the Membership Services are prohibited by applicable law, or become impractical or unfeasible for any technical, Terms of Membership Service or regulatory reason, by giving User as much prior notice as reasonably practicable; or immediately, if Society of Facility Engineers determines that User’s use of the Membership Services violates any Society of Facility Engineers term of Membership Service, including the AUP, User Agreement, Anti-Spam Policy, or Privacy Policy. If Society of Facility Engineers cancels this Agreement prior to the end of the Term for Your breach of this Agreement and related agreements, including the AUP, User Agreement, Anit-Spam Policy, or Privacy Policy or User’s use of the Membership Services disrupts our network, Society of Facility Engineers shall not refund to You any fees paid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, We may charge You 100% of all charges for all Membership Services in the then-current Term and Society of Facility Engineers shall have the right to charge You an administrative fee of a minimum of $35.00.
- Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 2(e), 3, 4, 12, 13, 17, 19 and 20 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of paid fees and charges shall be in addition to, and not be in lieu of, any other Terms of Membership Service or equitable rights or remedies to which Society of Facility Engineers may be entitled.
- You have thirty (30) days to dispute any charge or payment processed by Society of Facility Engineers. If you have a question concerning a charge you believe is incorrect, please contact us at support@sofes.org
- User’s Responsibilities.
- User will cooperate fully with Society of Facility Engineers in connection with Society of Facility Engineers’ provision of the Membership Services. User must provide any equipment or software that may be necessary for User to use the Membership Services. Delays in User’s performance of its obligations under this Agreement will extend the time for Society of Facility Engineers’ performance of its obligations that depend on User’s performance on a day for day basis. User must provide complete, correct and genuine contact information in the Registration Form and update such information as necessary from time to time so it remains complete, correct and genuine at all times; failure to do so may result in suspension or cancellation of Membership Services. User will notify Society of Facility Engineers of any change in User’s mailing address, telephone, electronic mail or other contact information.
- User is also responsible for ensuring that all aspects of the User hardware accessing the membership website are compatible with the hardware and software used by Society of Facility Engineers to provide the Membership Services, as the same may be changed by Society of Facility Engineers from time to time. Society of Facility Engineers shall not be responsible for any damages to the User hardware or other damages or any malfunctions or Membership Service interruptions caused by any failure of the User hardware to be compatible with the hardware and software used by Society of Facility Engineers to provide the Membership Services.
- User is responsible for maintaining the confidentiality of login and billing information. Society of Facility Engineers is not liable for any account disputes that may arise between various parties holding account login information. Society of Facility Engineers is not responsible for any changes made to the account or any information that has been modified by User, or any parties authorized by User. User is responsible for updating and maintaining contact and billing information with Society of Facility Engineers. Any changes to the User contact information must be made in their online account or by contacting our Support Team. User is responsible for ensuring that Society of Facility Engineers is able to notify the User for technical, billing or other issues or purposes deemed necessary by Society of Facility Engineers to maintain the account.
- User’s Representations and Warranties.
- In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses Your account, whether or not the transactions were on Your behalf.
- FOR MASSACHUSETTS RESIDENTS ONLY: User (a) shall at all times be solely responsible for and maintain the confidentiality of personal information of user’s in accordance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth (the “MA Regulation”) and (b) maintain appropriate security measures that are in compliance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [4.e ], “personal information” means information about an identifiable individual, including the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security or social insurance number or similar identifier; (ii) driver’s license number/state/province-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
- FOR CUSTOMERS OTHER THAN MASSACHUSETTS RESIDENTS: User (a) shall at all times be solely responsible for and maintain the confidentiality of personal information of User’s customers in accordance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth (the “MA Regulation”) and (b) maintain appropriate security measures that are in compliance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [4.f ], “personal information” means information about an identifiable individual, including the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security or social insurance number or similar identifier; (ii) driver’s license number/state/province-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
- License to Society of Facility Engineers. User hereby grants to Society of Facility Engineers a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Membership Services, except that with respect to personal information included in the User Content, such license shall be limited to allowing Society of Facility Engineers to use such Personal Information in accordance with its Privacy Policy:
- Society of Facility Engineers, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Membership Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. User further agrees that Society of Facility Engineers shall not be liable to User for any loss or damages that may result from such conduct.
- Billing and Payment.
- User will pay to Society of Facility Engineers the Membership Service fees for the Membership Services in the manner set forth in the during the purchase.
- Please note that special offers are limited-time promotional prices that are available to new customers and are valid for the Initial Term only, and not for successive or renewal periods. You will be notified of your pricing for EACH successive period (or renewal period) prior to the start of SUCH successive period (or renewal period). Society of Facility Engineers may increase the Membership Service Fee and Product fees (i) in the manner permitted in the Membership Service description and (ii) at any time on or after expiration of the Initial Term by providing 24 hours prior written notice thereof to User. Written notice may be in the form of (i) notices and updates on Membership website , (ii) Public Alerts issued by Society of Facility Engineers, or (iii) Notification of Successive Period Pricing ( or RENEWAL period pricing) It is the User’s sole responsibility to periodically review all methods of communications and notices sent or posted by Society of Facility Engineers.
- The Membership Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Membership Services or any software provided hereunder (excluding any tax on Society of Facility Engineers’ net income). All such taxes may be added to Society of Facility Engineers’ invoices for the fees as separate charges to be paid by User. All fees are fully earned when due and non-refundable when paid.
- Unless otherwise specified, all initial fees shall be payable upon sign-up, and all subsequent fees and related charges shall be due and payable when billed, if by credit card, or if not by credit card, within thirty (30) days after the date of the invoice.
- If Society of Facility Engineers collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Society of Facility Engineers prevails in any action to which the User and Society of Facility Engineers are parties, User will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Society of Facility Engineers’ reasonable attorneys’ fees.
- If any check is returned for insufficient funds Society of Facility Engineers may impose a minimum processing charge of $25.00 plus any applicable taxes.
- In the event that any amount due to Society of Facility Engineers is not paid when due, Society of Facility Engineers, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Membership Services. There may be a minimum $50.00 charge to reinstate accounts that have been suspended or terminated.
- Wire transfers will be assessed a minimum charge of $35.00 plus applicable taxes.
- There may be a minimum charge of $35.00 plus applicable taxes for all credit card chargebacks.
- User acknowledges and agrees that Society of Facility Engineers may pre-charge User’s fees for Membership Services and products to its credit card supplied by User during registration for the Initial Term.
- YOU ACKNOWLEDGE, AGREE AND AUTHORIZE US TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION.
- Payment Policies – General
- Accounts will not be activated or reactivated without prior payment.
- Incomplete, incorrect or questionable signup information can result in an account being suspended or terminated or NOT being activated. Some accounts may be placed on hold for up to 72 hours, pending review of information received.
- Any losses or expenses experienced by the User, due to actions taken by Society of Facility Engineers in response to Users non-payment, are not the responsibility of Society of Facility Engineers.
- Unless stated otherwise, a reference to ‘USD$’, ‘$US’, ‘dollar’ or ‘$’ is a reference to USA currency. All fees or other amounts hereunder shall be payable in US currency, provided however that in the event you signed up for your account or any other product or Membership Service for which the fee or other amount is payable in a currency other than $US, then any amounts payable by you hereunder shall be payable in such other currency.
- Payment Policies – Payment Processing
- Society of Facility Engineers’ preferred method of payment is credit card.
- By purchasing our Membership Services, you are agreeing to allow Society of Facility Engineers to place your account on a recurring payment plan. The account will automatically be re-billed according to the terms of the plan, products or Membership Services you select. By continuing (or renewing) your Membership Services and products you further agree to all of Society of Facility Engineers’ Terms of Membership Services and any price increases.
- You grant Society of Facility Engineers permission to charge your credit card for any and all Membership Services you request, including, but not limited to, any and all product or Membership Service.
- If we are unable to process a payment for your plan, product or Membership Service by its due date, your account will be cancelled for non-payment.
- If an account has been suspended for non-payment, it will only be reactivated upon payment of all overdue fees.
- If we make any refunds due to charges you dispute with your credit card Society of Facility Engineers, we will cancel your account. The cancelled account will only be reactivated once all disputed/refunded fees are resolved satisfactorily, and we receive payment for any and all administrative fees incurred by Society of Facility Engineers as a result of your dispute or charge-back request.
- It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks. A determination of such misuse or fraudulent use shall be in our sole discretion. Further, we may report all such misuses and fraudulent uses (as determined by us in our sole discretion) to appropriate government and law enforcement authorities, credit reporting Membership Services, financial institutions and credit card companies.
- Society of Facility Engineers as Reseller or Licensor. Society of Facility Engineers is acting only as a reseller or licensor of certain Membership Services, hardware, software and equipment used in connection with the products and/or Membership Services that were or are manufactured or provided by a third party (“Non-Society of Facility Engineers Product”). Society of Facility Engineers shall not be responsible for any changes in the Membership Services that cause the Non-Society of Facility Engineers Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Membership Services. Any malfunction or manufacturer’s defects of Non-Society of Facility Engineers Product either sold, licensed or provided by Society of Facility Engineers to User or purchased directly by User used in connection with the Membership Services will not be deemed a breach of Society of Facility Engineers’ obligations under this Agreement. Any rights or remedies User may have regarding the ownership, licensing, performance or compliance of Non-Society of Facility Engineers Product are limited to those rights extended to User by the manufacturer of such Non-Society of Facility Engineers Product. User is entitled to use any Non-Society of Facility Engineers Product supplied by Society of Facility Engineers only in connection with User’s permitted use of the Membership Services. User shall use its best efforts to protect and keep confidential all intellectual property provided by Society of Facility Engineers to User through any Non-Society of Facility Engineers Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Membership Services. User shall not resell, transfer, export or re-export any Non-Society of Facility Engineers Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
- Standard and Private-Label Reseller Programs. In addition to all terms and conditions described in this Agreement, the following shall also be applicable to Society of Facility Engineers Resellers;
- The Reseller agrees, on behalf of both the Reseller and each User signed up by the Reseller, to comply with these Terms of Membership Service.
- In the event that a Reseller or a Re-seller’s User is determined to be in violation of the Terms of Membership Service, the Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with the Terms of Membership Service.
- Society of Facility Engineers is not responsible for the actions or misrepresentations of Resellers. The Reseller hereby agrees to indemnify Society of Facility Engineers from and against any and all claims made by any User that result from the Re-seller’s misrepresentation, breach of the Terms of Membership Service or other improper actions by the Reseller.
- Society of Facility Engineers reserves the right to revise its Wholesale, Wholesale Plus and Private-Label Reseller Programs, AUP and the Terms of Membership Service at any time. Changes shall take effect when posted online or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
- Users who have been signed up by Resellers agree to operate in accordance with the Terms of Membership Service.
- Resellers cannot make any modifications to the Society of Facility Engineers Terms of Membership Service. Any such alterations shall be deemed a violation of the Terms of Membership Service and could result in a cancellation of a Re-seller’s account(s). Society of Facility Engineers is not responsible for any modifications made to the Terms of Membership Service by Resellers.
- Resellers assume all responsibility for billing and technical support for each of their Users. Society of Facility Engineers reserves the right to refuse inquiries made to the Support Team from the Customers of Resellers in the Reseller Program.
- Property Rights.
- Society of Facility Engineers hereby grants to User a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Society of Facility Engineers technology, products and Membership Services solely for the purpose of accessing and using the Membership Services. User may not use Society of Facility Engineers’ technology for any purpose other than accessing and using the Membership Services. Except for the rights expressly granted above, this Agreement does not transfer from Society of Facility Engineers to User any Society of Facility Engineers technology, and all rights, titles and interests in and to any Society of Facility Engineers technology shall remain solely with Society of Facility Engineers. User shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Society of Facility Engineers.
- Society of Facility Engineers owns all right, title and interest in and to the Membership Services and Society of Facility Engineers’ trade names, trademarks, Membership Service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Membership Services and the related hardware, and software systems.
- Disclaimer of Warranty. User agrees to use all Membership Services and any information obtained through or from Society of Facility Engineers, at User’s own risk. User acknowledges and agrees that Society of Facility Engineers exercises no control over, and accepts no responsibility for, the content of the information passing through Society of Facility Engineers’ host computers, network hubs and points of presence or the Internet. THE MEMBERSHIP SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER WE NOR ANY OF OUR PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A “RELATED PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE MEMBERSHIP SERVICES OR ANY EQUIPMENT WE PROVIDE. NO RELATED PERSON MAKES ANY WARRANTIES THAT THE MEMBERSHIP SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MEMBERSHIP SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, MEMBERSHIP SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE MEMBERSHIP SERVICES. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USER OR STORED BY USER OR ANY OF USER’S USERS VIA THE MEMBERSHIP SERVICES PROVIDED BY US NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
- Limited Warranty.
- Society of Facility Engineers represents and warrants to User that the Membership Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of Membership Service as provided by Society of Facility Engineers generally to its other Users for the same Membership Services; and (c) in compliance in all material respects with the applicable Membership Service Descriptions. User will be deemed to have accepted such Membership Services unless User notifies Society of Facility Engineers, in writing, within thirty (30) days after performance of any Membership Services of any breach of the foregoing warranties. User’s sole and exclusive remedy, and Society of Facility Engineers’ sole obligation, for breach of the foregoing warranties shall be for Society of Facility Engineers, at its option, to re-perform the defective Membership Services at no cost to User. Society of Facility Engineers may provision the Membership Services from any of its data centers and may from time to time re-provision the Membership Services from different data centers.
- The foregoing warranties shall not apply to performance issues or defects in the Membership Services (a) caused by factors outside of Society of Facility Engineers’ reasonable control; (b) that resulted from any actions or inactions of User or any third parties; or (c) that resulted from User’s equipment or any third-party equipment not within the sole control of Society of Facility Engineers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE MEMBERSHIP SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY PRODUCT OR MEMBERSHIP SERVICE PROVIDED TO USER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE MEMBERSHIP SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
- Limitation of Liability.
- IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THE MEMBERSHIP SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE MEMBERSHIP SERVICE FEES PAID TO US BY YOU PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- WE CANNOT GUARANTEE CONTINUOUS MEMBERSHIP SERVICE, MEMBERSHIP SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. WE WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
- EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR MEMBERSHIP SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other Terms of Membership Service theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15 shall not apply to User’s indemnification obligations.
- Notwithstanding anything to the contrary in this Agreement, Society of Facility Engineers’ maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by User for the Membership Services which gave rise to such damages, losses and causes of actions during the membership period prior to the date the damage or loss occurred or the cause of action arose.
- User understands, acknowledges and agrees that if Society of Facility Engineers takes any corrective action under this Agreement because of an action of User or one if its Users or a reseller, that corrective action may adversely affect other Users of User or other reseller Users, and User agrees that Society of Facility Engineers shall have no liability to User, any of its Users or any Reseller User due to such corrective action by Society of Facility Engineers.
- This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
- User agrees to indemnify, defend and hold harmless Society of Facility Engineers and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to User’s use of the Membership Services, (ii) any violation by User of the AUP, (iii) any breach of any representation, warranty or covenant of User contained in this Agreement or (iv) any acts or omissions of User. The terms of this section shall survive any termination of this Agreement.
- Waiver of Jury Trial
- Both You and Society of Facility Engineers hereby agree to waive all respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement.
- The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims.
- You and Society of Facility Engineers each acknowledge that the waiver is a material inducement for each party to enter into a business relationship that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings.
- Each party further warrants and represents that each has had the opportunity to have counsel review this Agreement and this waiver.
- The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.
- Independent Contractor. Society of Facility Engineers and User are independent contractors and nothing contained in this Agreement places Society of Facility Engineers and User in the relationship of principal and agent, master and servant, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Michigan. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this agreement must be brought in a state or federal court located in Wayne County, Michigan. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
- Headings. The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, Membership Service order, work order, confirmation, correspondence or other communication of User or Society of Facility Engineers, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of User and Society of Facility Engineers. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Membership Service may be modified from time to time by Society of Facility Engineers in its sole discretion, which modifications will be effective when posting to Society of Facility Engineers’ Web site or on any subsequent date as may be set forth in any required notice provided by us in connection therewith. Upon renewal of any Membership Services or products, User agrees to all Terms of Membership Service in effect on date of renewal and any amendments which take effect pursuant to the terms hereof.
- Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal Membership Service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Society of Facility Engineers may give written notice to User via electronic mail to the User’s electronic mail address as maintained in Society of Facility Engineers’ billing records.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. User may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Society of Facility Engineers. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Society of Facility Engineers may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of User. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Society of Facility Engineers’ records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, Terms of Membership Service or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, User acknowledges and agrees that any supplier of third-party product or Membership Service that is identified as a third-party beneficiary in the Membership Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or Membership Services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or Membership Services against User as if it were a party to this Agreement.
- Government Regulations. User may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States (or, if User is outside of the United States, to anyone outside of User’s national jurisdiction) in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction User operates or does business.
- Marketing. User agrees that during the term of this Agreement Society of Facility Engineers may publicly refer to User, orally and in writing, as a User of Society of Facility Engineers. Any other public reference to User by Society of Facility Engineers requires the written consent of User.
This file was last modified January 19, 2021.