Terms of Service

These Terms of Service were last updated [March 07, 2013]

OVERVIEW

Welcome to Constructus!  We are an online subscription service, providing our members with access to a vast community of experts, online education programs, and consulting services related to the construction and trades industries. Here, you will find detailed terms and conditions. Please read and understand these terms and conditions as they govern your use of our service.

The terms below are also a resource for you to get a deeper understanding of how our service works, including, the way we bill, how we interact with you what types of data we may collect, and other useful details about our service. We encourage you to revisit these terms of service when you have a question about the service or want to know how something works.  For your convenience, we’ve indexed some of the major topics below so as to help you more easily navigate and access areas of interest.

• Agreement to Terms
• Subscription and Access
• Payment
• Termination of Subscription
• Intellectual Property and Copyright Abuse
• No Warranty
• Data Use
• Limitations of Liability
• Changes to Terms
• Governing Law
• Waiver of a Jury Trial

MEMBERSHIP SUBSCRIPTION AGREEMENT AND TERMS OF SERVICE

This is an agreement between Constructus International LLC (“Constructus”) and you (whether an individual or entity, and hereinafter referred to as the “Customer”).  This Agreement includes the Membership Agreement and Terms of Service (this “Agreement”).  By clicking “I Agree” below, the Customer agrees that its use of Constructus’ website (the “Website”) is subject to the terms and conditions set forth in this Agreement.  If the Customer is an entity, then the individual clicking “I Agree” represents and warrants that he or she has the authority to enter into this Agreement with Constructus on behalf of the Customer.  The Customer further agrees to be bound by this Agreement by accessing the Website.  IF YOU DO NOT AGREE, DO NOT ACCESS OR OTHERWISE USE THE WEBSITE.

1. Subscription and Access to Member Content
   1. Constructus Membership Subscription.  For and in exchange for the applicable membership subscription fee (as such fee may be adjusted from time to time by the Company and whether such fee is a monthly or annual subscription fee, the “Subscription Fee”), Constructus will provide the Customer with non-exclusive access to the Member section of Website (the “Member Content”) for the Customer’s use during the Term.  The Customer will only use the Member Website and the content contained therein for its internal business purposes related to the improvement of the Customer’s business practices.
   2. User Name, Account and Password.  Upon completion of the registration process, the Customer will be prompted to create a username and password for its account.  The Customer is entirely responsible for maintaining the confidentiality of the login information.  The Customer further agrees not to provide any other party with its login credentials.  Violation of this policy will result in immediate termination of the Customers membership without refund.
   3. Term.  The Agreement is effective upon execution of the Agreement and continues for the Initial Term (as defined below).  The “Initial Term” shall mean (i) in the event the Customer selects a monthly term, one calendar month from the date of effectiveness of this Agreement; or (ii) in the event the Customer selects annual terms, one calendar year from the date of effectiveness of the Agreement. Upon the expiration of the Initial Term, the Agreement shall automatically renew for successive periodic terms (each, a “Successive Term”), unless the Customer provides at least 7 days advanced written notice to Constructus of the Customer’s desire to terminate the Agreement.  Such notice shall be delivered to Constructus as set forth in Section 11.  In the event the Customer selects a monthly term, each Successive Term shall be one additional calendar month.  In the event the Customer selects an annual term, each Successive Term shall be one calendar year.  In any event, the Initial Term plus each Successive Term shall be referred to herein as the “Term.”
   4. Payment of Subscription Fees.   Subscription Fees shall be billed on a recurring basis and shall be automatically charged at the end of each Initial or Successive Term, unless the Customer terminates this Agreement in accordance with the terms of this Agreement.  If for any reason the Customer fails to pay the Subscription Fees when due, Constructus has the right to charge the Customer interest compounded at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower, until such payment is made in full.  Constructus may also, without limiting any other rights or remedies available to it, suspend the Customer’s access to the Websites and/or Member Content until such outstanding amounts are paid in full.  Constructus shall not be required to provide any advanced notice to the Customer prior to suspending the Customer’s access to the Website or the Member Content.  The Customer shall pay all sales, use, value added, and other taxes and duties, of whatever nature, federal, state or otherwise, including, without limitation, any penalties or interest thereon, which are levied or imposed by reason of the Website, the Member Content or the services provided herein.
   5. Termination.
      1. Either party may terminate the Agreement, upon written notice to the other party, if such other party is (i) subject to proceedings in bankruptcy or insolvency, if a receiver is appointed, or if the other party assigns its property to its creditors, or (ii) in material breach of the Agreement and such breach is not cured within thirty (30) days written notice thereof.  The parties’ right to terminate the Agreement pursuant to this Section 1.5(a) is without prejudice to, and shall not affect any other remedies available to, the parties.
      2. In the event the Customer selects an Initial Term of one year, the Customer shall have the right to terminate the Agreement without cause upon 30 days written notice; provided, however, the Customer shall pay to Constructus an early termination fee of 25% of the remaining balance of the yearly fee.
2. Limitations on Use of Website and Member Content.  The Customer acknowledges and agrees that its use of the Website and the Members Content shall be subject to the following conditions:
   1. The Customer is authorized to a single access right to access the Member Content within the Website.  This access right shall be granted for sole use to one user.
   2. The Customer will not license, sublicense, sell, transfer, assign, perform, display, distribute or otherwise exploit or make the Membership Content available to third parties;
   3. The Customer will not disassemble, reverse engineer, modify, translate, alter, decompile, or create derivative works from the Website, including, the Member Content;
   4. The Customer will not create Internet links to the Website or “mirror” any content contained in Website or within the Member Content on any other Internet-based device;
   5. The Customer will not use the Website or the Member Content for any purpose that violates the rights of any third party or applicable law;
   6. The Customer will not gain unauthorized access to the Website or the Member Content or the related systems or networks thereto; and
   7. The Customer is responsible for its User’s compliance with the terms of the Agreement.  Any material breach of this Agreement by the Customer shall constitute a material breach of this Agreement and Constructus shall have the right to immediately terminate this Agreement, suspend the Customer’s access to Website and Member Content or exercise any other right or remedy available to it under this Agreement, at law or in equity.
   8. Confidentiality of Certain Information.  The Customer may, from time to time, participate in “MasterMind” groups or other discussions with other members of Constructus’ services (the “Other Members”) wherein the Other Members and/or the Customer may disclose information deemed proprietary or confidential about their own business (“Confidential Information”).  To the extent the Customer participates in any such “MasterMind” groups or other discussions with Other Members, the Customer hereby agrees to keep confidential and not disclose all such Confidential Information.  Notwithstanding the foregoing, the term “Confidential Information” shall not be deemed to include any information which (i) is or becomes part of the public domain, (ii) is in the possession of the Customer without confidentiality restrictions prior to the disclosure by the Other Member.  Constructus hereby disclaims any and all liability arising from the breach by any Other Member of their confidentiality obligations with respect to the Confidential Information of the Customer.  Further, the Customer hereby agrees that in no event shall Constructus be liable for any damages arising from such Other Member’s disclosure of the Customer’s Confidential Information.
3. Intellectual Property Rights.  The Customer acknowledges that all right, title and interest in and to any and all technology and intellectual property forming part of the Website, the Member Content, or the provision any of the foregoing, including, without limitation, all patents, inventions, copyrights, trade secrets, trademarks, service marks, trade names and other intellectual property rights (collectively, “Intellectual Property”), in and to Website and/or Member Content is vested in Constructus.  Nothing in this Agreement shall give the Customer any right, title, claim or interest in or to any such Intellectual Property.  In the absence of Constructus’ prior written consent, the Customer shall not use in any manner Intellectual Property except as permitted by this Agreement.  All rights in the Website and the Member Content are expressly reserved.
4. Additional Services.  In addition, Customer may elect to purchase additional professional services from Constructus and such additional services will be set forth in a separate Expert Services Consulting Agreement.  Such additional services may include, for example, one-on-one business consulting, webinars, and other products or services.
5. Ongoing Obligations.  The obligations of each party pursuant to the following Sections shall survive the expiration or termination of the Agreement: 1.4, 3, 5, 6 through 10.
6. NO WARRANTIES.
   1. THIS IS A SERVICE AGREEEMENT.  CONSTRUCTUS DOES NOT MAKE AND CUSTOMER DOES NOT RECEIVE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CONSTRUCTUS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, USAGE OF TRADE AND COURSE OF DEALING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  CONSTRUCTUS DOES NOT WARRANT THE ACCURACY OF THE INFORMATION INCLUDED WITHIN THE WEBSITE OR THE MEMBER CONTENT, OR THE ANALYSES OF THAT INFORMATION, OR ANY RESULTING CONSEQUENCE THAT MAY OCCUR AS A RESULT OF CUSTOMER’S RELIANCE UPON CONSTRUCTUS’ INFORMATION, MEMBER CONTENT OR ANALYSES.  THE INFORMATION CONTAINED IN THE WEBSITE AND WITHIN THE MEMBER CONTENT IS PROVIDED “AS IS.”
   2.   THE CUSTOMER UNDERSTANDS THAT CONSTRUCTUS CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING OR VIEWING FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. THE CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SITE FOR THE RECONSTRUCTION OF ANY LOST DATA. CONSTRUCTUS DOES NOT ASSUME ANY RESPONSIBILITY OR RISK FOR YOUR USE OF THE INTERNET.
7. Indemnification.
   1. Constructus’ IP Indemnification.  Constructus will defend the Customer from and against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the Customer’s proper use of Website or the Member Content constitutes infringement of any United States patent, trademark, copyright of any third party (an “IP Claim”), and shall indemnify the Customer for any damages, attorney fees and costs finally awarded against the Customer as a result of, and for amounts paid by the Customer under, a court-approved settlement of an IP Claim; provided that the Customer (a) promptly gives Constructus written notice of the IP Claim, (b) gives Constructus sole control of the defense and settlement of the IP Claim (provided that Constructus may not settle any IP Claim unless the settlement unconditionally releases the Customer of all liability); and (c) provides Constructus all reasonable assistance requested at Constructus’ expense.  Constructus may, at its sole discretion and sole expense: (i) modify or replace the Website or all or any portion of the Member Content so that it becomes non-infringing; (ii) obtain a license for the Customer’s continued use of abaqis; or (iii) immediately terminate the Customer’s subscription to Website and the Member Content and provide Customer an equitable refund of Subscription Fees actually paid by the Customer to Constructus.  Constructus shall have no obligation to indemnify Customer if the IP Claim results from, arises out of or relates to the Customer’s failure to use or operate the Website or otherwise access the Member Content in accordance with instructions and parameters provided by Constructus.  The foregoing provisions constitute Customer’s sole and exclusive remedies and Constructus’ entire liability, with respect to IP Claims.
   2. Customer’s Indemnification.  The Customer shall defend Constructus against any claim, demand, suit or proceeding made or brought against Constructus by a third party alleging that the Customer’s use of Website or the Member Content violates any applicable law (“Customer Claim”) except in circumstances where such claim arises out of or relates to Constructus’ gross negligence or willful misconduct, and the Customer agrees to indemnify Constructus for any damages, attorney fees and costs awarded against Constructus; provided that Constructus: (a) promptly gives the Customer written notice of the Customer Claim, (b) gives the Customer sole control of the defense and settlement of the Customer Claim (provided that Customer may not settle any Customer Claim unless the settlement unconditionally releases Constructus of all liability); and (c) provides the  Customer all reasonable assistance requested at the Customer’s expense.
8. Data .  
   1. From time to time, the Customer may deliver certain information, including, without limitation, data, personal information, information related to their company, (collectively, “Data”).    All Data collected by Constructus will be subject to Constructus’ Privacy Policy then in effect.
   2. Customer acknowledges that Constructus may or may not prescreen the Data, but that Constructus shall have the right (but not the obligation) in its sole discretion to pre-screen, refuse or move the Data that is provided to Constructus.  The Customer represents and warrants that all Data provided to Constructus will be true and accurate.  CONSTRUCTUS shall not be liable for the deletion, destruction, damage, loss or failure to store any of THE CUSTOMER’s data.
   3. The Customer agrees and acknowledges that Constructus may access the Customer’s password-protected account(s), if any, to respond to service or technical problems or to ensure compliance with the Agreement.  
9. Limitation of Liability.
   1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF CONSTRUCTUS FOR ALL CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THE AGREEMENT FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR OTHER STATUTORY, LEGAL OR EQUITABLE GROUNDS, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER OVER A TWELVE (12) MONTH PERIOD.





10. Changes to This Agreement.  Constructus reserves the right, from time to time, with or without notice, to change these Terms of Service including the Privacy Policy in the sole and absolute discretion of Constructus. The most current version of this Agreement can be reviewed by visiting the Website and clicking on “Terms of Serivce” located at the bottom of the each Constructus web page.  The most current version of the Terms of Service and Privacy Policy will supersede all previous versions.  Constructus will endeavor to post prior version(s) on the Website when the Terms of Service or Privacy Policy are updated.
11. Miscellaneous.  The Agreement shall not be assigned, delegated or otherwise transferred by Customer without the prior written consent of Constructus, and any such unauthorized transfer shall be null and void.  This Agreement shall inure to and be binding upon the party’s successor.  The Agreement constitutes the entire agreement between the parties, superseding all previous communications and negotiations, whether written or oral.  If any part of the Agreement is held by any court of competent jurisdiction to be invalid, the remaining parts of this Agreement shall continue to be valid and enforceable as to the parties hereto.  The waiver or failure of either party to exercise in any respect any right provided for such party herein shall not be deemed a waiver of any further right hereunder.  Any notice which may be permitted or required under the Agreement shall be delivered personally, or by facsimile or other electronic means, or sent by United States registered or certified mail, postage prepaid, addressed: (a) to Constrctus at Constructus International LLC, Attn: [Kristine Kochevar], P.O. Box 745482 Arvada, CO 80006, (303)736-9221, Facsimile: (303)421-9845, email: kkochevar@constructus.com, and (b) to the Customer at the address provided by the Customer in the registration forms.  Notice given by facsimile or other electronic means shall promptly be confirmed by registered or certified mail or overnight carrier shall be deemed to be received upon verification that such facsimile or electronic communication was received by the other party.  Notice by registered or certified mail or overnight carrier and shall be deemed to be received two (2) days following the date of mailing, provided such notice is properly addressed and sufficient postage is affixed thereto, or the actual date of receipt, whichever is earlier.  If performance by either party of any other obligation under the Agreement, except for Customer’s payment obligations hereunder, is prevented, restricted, delayed, or interfered with by reason of causes beyond its reasonable control, including, without limitation, natural disasters, governmental actions, floods, fires, arson or civil disturbances, transportation or telecommunications problems, Customer caused errors, failure of third party licensors or vendors to support software or hardware products, or failure of Constructus’ suppliers or subcontractors, then such party shall be excused from such performance for such time as may be required for the party, through the exercise of commercially reasonable efforts, to cure such prevention, restriction, delay, or interference.  The party affected by a force majeure event will advise the other party in reasonable detail of the event as promptly as practicable, including the estimated duration of the event, and keep the other party reasonably apprised of the progress in resolving the event.  The Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Colorado, without reference to, or application of, its conflict of laws principles.  Any litigation under the Agreement must be brought in a state or federal court sitting in the City and County of Denver.  EACH OF THE PARTIES IRREVOCABLY WAIVES ITS RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THE AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST THE OTHER.