These Terms and Conditions (“Agreement”) are part of and incorporated into the proposal executed between TopBuilder Solutions, LLC (“TopBuilder”) and the Customer identified in the proposal to which this Agreement is attached (“Customer” or “you”). They are binding on both Customer and TopBuilder and apply to Customer’s access and use of the TopBuilder CRM software, Quote Builder software, third party software (only to the extent subscription is requested in the proposal), and any features added or modifications made to the forgoing during the Term (“TopBuilder Software”) and other products and services identified in the proposal, as it may be modified from time to time as permitted herein.

1. License; Use Restrictions. Subject to Customer’s payment of the subscription fees, one-time fees, and fees relating to optional items, TopBuilder hereby grants Customer a non-exclusive, non-sublicenseable, and non-transferable license during the Term to access and use the TopBuilder Software (“Licensed Software”) solely for Customer’s internal construction management business purposes only up to the number of users authorized (“Authorized Users”) and quantities purchased in the proposal. All enhancements, customizations, maintenance and support modifications and other changes made to the Licensed Software by either Customer or TopBuilder (or jointly) are subject the same ownership and use terms as the Licensed Software and are owned by TopBuilder. Customer agrees to the Authorized User allocation in the proposal and that users exceeding this allocation will be automatically billed as additional users. Authorized Users must be employees of Customer or independent contractors of Customer hired to assist Customer with use of Licensed Software or its installation. Customer shall authorize access to and assign unique passwords and usernames to the number of Authorized Users. User logins are for designated Authorized Users and cannot be shared or used by more than one user, but any Authorized User login may be permanently reassigned to another person as needed. Customer will be responsible for the confidentiality and use of Authorized User’s passwords and usernames. Independent contractors must agree to comply with the Confidentiality obligations herein. TopBuilder may monitor Customer’s usage of the Licensed Software for compliance with the terms herein. Customer shall not use the Licensed Software for any purposes beyond the scope of the license granted in this Agreement. Customer shall not: (i) copy, modify, or create derivative works of; (ii) rent, lease, lend, sell, sublicense, assign, distribute, or publish; or (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of, the Licensed Software. TopBuilder reserves all rights in the Licensed Software, including all intellectual property rights, except those expressly licensed to Customer in this Agreement.

2. Term of Agreement. The term of this Agreement is for one (1) year from Customer’s acceptance of the proposal (“Initial Term”), and it shall automatically renew for additional, successive one (1) year periods (each a “Renewal Term,” and combined with the initial Term is defined as the “Term”), unless Customer or TopBuilder provides written notice of nonrenewal to the other party at least thirty (30) days before the end of the Initial Term or Renewal Term. On or about the first day of your Renewal Term, you will be charged for your annual invoice payment, if payment has not been received before then (as permitted in Section 9 below). Notices of non-renewal must be in writing and sent to TopBuilder at support@topbuildersolutions.com by your TopBuilder administrator. Annual invoice and other fees paid to TopBuilder are non-refundable, non-recoupable and are not subject to proportional reduction.

3. Termination of Agreement. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach via certified mail, overnight mail or via email address (customarily used for your TopBuilder Administrator and TopBuilder’s primary point of contact for Customer). In the event of termination by TopBuilder under this section, Customer shall not be entitled to any refund or reduction of annual fees paid. Customer is not permitted to cancel or terminate this Agreement for convenience or without cause during the Term. Failure of Customer to use the Licensed Software is not grounds for a refund or early cancellation or termination. Upon expiration or early termination of this Agreement, the license granted hereunder will also terminate, and Customer shall cease accessing and using the Licensed Software.

4. Early Termination if Not Satisfied. If after commencement of the Initial Term you are not 100% satisfied with Licensed Software, you may terminate this Agreement by sending a notice of cancellation to support@topbuildersolutions.com within the first 60 days of the Initial Term and receive a full refund of all Licensed Software subscription fees. One-time fees, including setup and implementation fees will not be refunded. You have 45 days from the date of the notice of cancellation to return as a Customer under the same agreement with price protection and no setup fees (your data will remain in the CRM Software for up to 45 days). After 45 days, TopBuilder will archive your data and if you wish to return, you must pay a setup fee and sign a new proposal/agreement.

5. Additional Services. TopBuilder will provide implementation, support, training, and enhancement policies as specified in Exhibit A hereto

6. Confidentiality. You agree to keep confidential and not disclose the features, graphics and functionality of the Licensed Software and TopBuilder pricing, features, functions, system, business processes, designs or any intellectual property, to any third party, including any competitor or pseudo-competitor of TopBuilder such as, but not limited to, FollowupCRM, Buildr, ECi/Lasso DataSystems, SmartTouch Interactive, InfusionSoft, Salesforce, Cosential, Builder Trend or resellers, or any person at Constellation Software.

7. Monthly Email Allotment. Under the proposal, Customers have access to send up to 40,000 emails per month. For companies with larger requirements, you may exceed this monthly allotment by paying just $0.0009 per email over the 40,000 monthly amount. This additional amount will be billed in the month following the month where monthly amount was exceeded (for example, 50,000 emails in one month = $9 overage charge).

8. Use of Customer Logo. Many TopBuilder Solutions customer’s logos are listed on our website and from time to time on social media. By signing this agreement, you are giving TopBuilder Solutions the right to use your company logo on our website and social media.

9. Payments Terms. Customer will be invoiced annually in advance of each Term , for the Licensed Software and any other services requested by Customer and payment of such fees is e due upon receipt of each invoice. All payments will be made in U.S. dollars. Any payments not made within thirty days of the date Customer is invoiced are late payments hereunder and will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. Annual Invoice payments for the Initial Term and Renewal Terms can be charged to your credit card or by ACH withdrawal on or about the first day of each Term, if not received by then. You hereby give TopBuilder permission to charge your card and make the ACH withdrawal for the invoice payment as stated herein (and to the extent permitted on the proposal). Other than annual invoice payments, all other payments to TopBuilder under the proposal (as amended) or this Agreement are due within thirty (30) days after the date invoiced to Customer. . Customer shall reimburse TopBuilder for all reasonable costs incurred by TopBuilder in collecting any late payments or interest, including attorneys' fees, court costs, bank or lender declination fees, and collection agency fees.

10. Disclaimer of Warranties; Limitation of Liability. THE LICENSED SOFTWARE AND ALL SERVICES PROVIED BY TOPBUILDER ARE PROVIDED "AS IS" AND TOPBUILDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TOPBUILDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TOPBUILDER MAKES NO WARRANTY THAT THE LICENSED SOFTWARE OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. IN NO EVENT WILL TOPBUILDER BE LIABLE TO CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; OR (B) DAMAGES DUE TO USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR LACK OF RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY. IN NO EVENT WILL TOPBUILDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL FEES PAID BY CUSTOMER TO TOPBUILDER IN THE YEAR PRECEDING THE EVENTS GIVING RISE TO THE CUSTOMER’S CLAIM.

11. Entire Agreement. This Agreement, together with the proposal (and any modifications thereto) and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

12. Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal or state courts located in Harris County, Texas, and each Party irrevocably submits to the personal jurisdiction of such courts in any such suit, action, or proceeding.

13. Execution. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A PDF or fax copy of a signature shall be effective as an original.

The following sets forth TopBuilder’s implementation, support, training, and enhancement policies. In this document, we outline what is included and what is not included with your subscription. We have also included our service level commitment to our customers in the Service Level Agreement Addendum. If you have any questions or concerns regarding our policies, please do not hesitate to contact your account or support manager.


Implementation

Initial Implementation Includes:

1. Account kickoff meeting conducted remotely by your support manager.

2. Account configuration from the provided initial setup worksheet.

3. Data conversion/data load from the provided data upload worksheet. The customer must provide the data in the provided TopBuilder upload worksheet format.

4. Branding of your emails/newsletters. We will create a first draft using standard layouts or guided by a design you provide. You will be allowed one revision.

5. Setup of your interfaces (if purchased).

6. Coding and Setup of your contact website forms or the Lead Capture API (if purchased).

7. Completion of custom quote template (if purchased with original agreement).

8. Sender Reputation and Blacklist checks.

9. White labeling your company domain (this improves deliverability of your emails and quotes).

10. Client Service Consultation (2 hours).


Implementation does not Include:

1. Customizations and enhancements to the base product (anything that is not customizable using self-service configuration tools and utilities). This includes:

a. Custom reports

b. Custom templates

c. Customizations to the interface

2. Ongoing data loads

3. Ongoing changes to your web contact form, email templates, quote templates and branding.

4. Reformatting your initial data load to match the provided TopBuilder upload data worksheets.


Support and Training

TopBuilder support includes email & phone support and daily remote training. Your account subscription includes 10 hours (“support hours”) of support annually. Additional hours can be purchased online under the Setup>Account Profile page. Support hours carry over from year to year.

Support hours are tracked in 30-minute increments. Remote training and simple email/phone questions are not counted as support hours.

The following describes what is included in complimentary support and training and what is identified as support hours. Note: Enhancements and Customizations are not part of support (please refer to the Enhancement and Customization Policies section below).


Complimentary Support and Training Includes:

(Please refer to our Service Level Agreement below for our policies on prioritization and response times.)

1. Email support for questions and status updates. User support email address is support@topbuildersolutions.com.

2. Phone support for simple questions and updates (again please refer to the Service Level Agreement for details).

3. Unlimited Live Training
  a.Only active users can attend this training (we verify your login using your email address).

  b. Dates and time are posted in the TopBuilder Help Center > Training tab.

4. One two-hour client services review.



Enhancement and Customizations

1. Before enhancement requests are accepted by support, customers must:
a. Complete the implementation (implementation is complete when you attend the Account Review)
b. Attend the Client Services Review
c. Attend live training
d. Use the software for 30 days after implementation is complete.
2. Before your enhancement request is considered, you must complete an Enhancement Request Form in its entirety and submit to Support@topbuildersolutions.com. Your enhancement request must include all the details necessary to complete the work. Additional notes:
a. For Quote Changes, you must submit a finalized quote/ design template.
b. Incomplete enhancement requests will not be accepted.
c. If you need to have a meeting to discuss a quote design, we will bill you for that time at our standard hourly rate.
3. Once the enhancement request is reviewed by our support team, TopBuilder Support will notify you regarding the status of your request and the expected delivery date.
4. Completion of the work will be done based on the original design submitted on your request. If changes are made to the design, the changes will be reviewed and quoted. Timelines will change if needed.
5. Status updates will be provided via email from engineering or support.
6. Final signoff will be required (this can be done via email).