BuildOps Terms of Service
These Terms of Service (“ToS”) are between BuildOps, Inc. (“BuildOps”) and the customer identified on the Order (“Customer”) and applies to all Orders entered into with Customer. The ToS is effective upon the date of last execution by the parties (“Effective Date"). Certain capitalized terms are defined in Section 35 (Definitions) and others are defined contextually in this Agreement.
1) Permitted Use.
a) BuildOps grants to Customer a worldwide, non-transferable, non-exclusive, non-sublicensable right to access and use the SaaS Service during the Subscription Term only for Customer’s internal business purposes and in accordance with the Documentation, the Order and this Agreement.
2) Users.
a) Only Users may access and use the SaaS Service. Customer maintains sole control over (i) its Users’ access and use of the SaaS Service in compliance with this Agreement, and actions taken through its Users’ accounts (excluding misuse of accounts caused by BuildOps’s breach of this Agreement) (ii) Customer Data, and (iii) the use and confidentiality of its Users’ logon credentials to the SaaS Service. Each party will promptly notify the other party if it becomes aware of any compromise of any logon credentials.
b) Customer shall ensure that the number of authorized users accessing or using the Services ("Users") does not exceed the number of User licenses purchased under the applicable Order Form at any time. Customer shall maintain accurate and complete records of all Users sufficient to verify compliance with this Section.
3) Restrictions.
a) Except as expressly authorized in this Agreement, Customer (and its Users) will not: (a) provide access to, distribute, sell or sublicense the Services to a non-User, BuildOps competitor, or other third party (b) use the Services on behalf of, or to provide any product or service to a non-User, BuildOps competitor, or other third party, (c) use the Services to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Services, except to the extent expressly permitted by Law (and then only with prior notice to BuildOps), (e) modify or create derivative works of the Services or copy any element of the Services (other than authorized copies of the Software), (f) remove or obscure any proprietary notices in the Services or otherwise misrepresent the source of ownership of the Services, (g) publish benchmarks or performance information about the Services or facilitate third parties to compile benchmarks or performance measurements about any Services, (h) interfere with the Services operation, circumvent its access restrictions or conduct any security or vulnerability tests of the Services, (i) transmit any viruses or other harmful materials to the Services, (j) allow individuals to share User logon credentials, (k) engage in any fraudulent, misleading, illegal, or unethical activities using or related to the Services or (l) use the Services to store or transmit material which contains illegal content.
4) SLA and Support.
a) During the Subscription Term the SaaS Service will be subject to the SLA. BuildOps will provide Customer with Support in accordance with the Support Policy.
5) Customer Data.
a) Data Use. Customer grants BuildOps the non-exclusive, worldwide, limited right to use, copy, store, transmit, and display Customer Data and to modify and create derivative works of Customer Data (e.g. for technical purposes such as reformatting for display on various types of devices), but only as necessary to improve and provide Services under this Agreement. BuildOps may collect, use, and analyze data derived from Customer's use of the Service, including usage patterns, system performance metrics, and feature utilization ("Usage Data"), for the purposes of (a) operating, improving, and enhancing the Service, (b) developing new products and services, and (c) BuildOps’ internal business purposes, including analytics, benchmarking, and capacity planning. BuildOps shall not publish or publicly share any Usage Data unless it has been anonymized and aggregated.
b) Security. BuildOps uses reasonable technical and organizational measures designed to protect the SaaS Service and Customer Data as described in the Security Policy. BuildOps will maintain commercially reasonable standards and controls designed to detect and prevent the introduction of viruses, malware, Trojan horses, and other code intended to do harm.
c) Personal Data. Where BuildOps acts as a processor, each party agrees to comply with its respective obligations under the DPA. Additionally, where BuildOps acts as a controller, BuildOps uses Usage Data and User account information as described in its Privacy Policy.
d) Data Export. Customer agrees that following expiration or termination of all SaaS Subscriptions under the Agreement, BuildOps may immediately deactivate Customer’s account(s) associated with such Agreement. BuildOps will make Customer Data available to Customer for export as long as BuildOps receives written notice within thirty (30) days after the effective date of expiration or termination from Customer. After such thirty (30) day period, BuildOps will have no obligation to retain Customer Data.
6) Customer Obligations.
a) Responsibility for Customer Data. Customer is responsible for its Customer Data, including its content and accuracy, and agrees that its use of the Services and all Customer Data will comply with all Laws. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary or legally required to use its Customer Data with the Services and grant BuildOps the rights in Section 5 (Customer Data), all without violating or infringing Laws, third-party rights (including intellectual property, confidentiality, publicity, or privacy rights) or any terms or privacy policies that apply to the Customer Data.
b) Prohibited Uses. Customer may not use the Services with Prohibited Data or for High-Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that BuildOps is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, BuildOps has no liability for Prohibited Data or use of the Services for High-Risk Activities.
7) Suspension of Service.
a) BuildOps may suspend Customer or a User’s access to the Services if (a) Customer fails to pay any undisputed fee(s) within 10 days of receiving notice of non-payment; or (b) BuildOps reasonably believes Customer is in breach of Section 3 (Restrictions) or Section 6 (Customer Obligations), and/or its actions risk harm to other customers or the security, availability or integrity of any of the Services. Where practicable, BuildOps will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue leading to suspension, BuildOps will promptly restore Customer’s or User’s access to the relevant Services in accordance with this Agreement.
8) Third-Party Integrations.
a) The Services may integrate with or enable access to certain third-party applications, platforms, or services, or services that utilize the BuildOps application programming interface (“API”) or otherwise connect with the SaaS Services (“Third-Party Integration”) including but not limited to enterprise resource planning integrations, add-on integrations for purchase, or any other Third-Party Integration BuildOps may offer. If Customer elects to use Third-Party Integrations with the Services, Customer acknowledges and agrees that:
i) BuildOps does not control and has no liability for Third-Party Integrations, including their security, functionality, operation, availability or interoperability or how the Third-Party Integrations use Customer Data;
ii) BuildOps does not warrant or guarantee that any specific Third-Party Integrations will be provided, and the list of available Third-Party Integrations is subject to change;
iii) BuildOps does not warrant that any provided Third-Party Integrations will be error-free, uninterrupted, or compatible with Customer's systems or requirements;
iv) Use of Third-Party Integrations and the transmission of Customer Data to a Third-Party Integration are subject to the terms, conditions, limitations, and capabilities of the applicable Third-Party Integration providers, which may change without notice to BuildOps; and
v) Any failure, degradation, or discontinuation of a Third-Party Integration, or any failure of a Third-Party Integration to meet Customer's specifications or expectations, shall not constitute a breach of this Agreement and shall not give rise to any right of Customer to terminate this Agreement or receive any refund, credit, or other remedy. For clarity this includes enterprise resource planning integrations.
b) Customer gives BuildOps the right to access and exchange Customer Data with the Third-Party Integration in relation to Customer’s use of the Service. Customer shall not use integration with Third-Party Integrations to circumvent any restrictions under this Agreement. Any use by Customer of such Third-Party Integrations is solely the responsibility of Customer. To the extent Customer authorizes the access or transmission of Customer Data through a Third-Party Integration, such Third-Party Integration terms will govern. In no event will BuildOps be responsible for any use, disclosure, modification or deletion of such Customer Data or for any act or omission on the part of such Third-Party Integration provider or its services.
c) Physical Components. If a Third-Party Integration requires physical components, Customer is responsible for all shipping costs, as well as any applicable penalties if physical components are damaged, lost, or not returned to the Third-Party Integration provider within 30 days of expiration or termination of the Subscription Term.
9) Professional Services.
a) Any purchased Professional Services are as described in the relevant Order and Statement of Work; BuildOps is not obligated to provide any Professional Services without an executed Statement of Work.
10) Commercial Terms.
a) Subscription Term. Each Subscription Term will be set forth in the Order.
b) Fees. Fees are invoiced as described in the Order and are in US dollars. If Customer has a good faith dispute of an invoice (or any portion thereof), it shall provide BuildOps by the invoice due date with (a) written notice, (b) reasonable detail of the basis of such dispute, and (c) payment of the undisputed portion of the invoice. The parties shall cooperate in good faith to resolve such disputes. Unless the Order provides otherwise, all fees are due upon receipt of invoice. BuildOps reserves the right to charge a late payment interest fee up to 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees are non-refundable except as set out in Section 12 (b) (Warranty Remedy), Section 16 (d) (Mitigation and Exceptions) and the SLA. Customer's payment obligations under this Order Form are irrevocable upon execution and are not contingent on the delivery of any future functionality or features.
c) If Customer requires that BuildOps use a third-party payment processor (e.g. Ariba, Stripe, etc.) for invoicing and payment hereunder, Customer shall be responsible for any fees and charges associated with such use (including registration, participation, and payment processing) and Customer shall reimburse BuildOps for any such fees and charges set forth in an invoice. If Customer pays via credit card, Customer is responsible for all associated fees.
d) Licensed User Minimum. The number of Licensed Users specified above represents the minimum quantity for the applicable Subscription Term (the "User Floor"). Customer may not reduce the number of Licensed Users below the User Floor during the Subscription Term. Customer may add users above the User Floor at the monthly per-user price above on a prorated basis for the rest of the Subscription Term. The new total number of Users becomes the new User Floor.
e) Taxes. BuildOps may be required to charge taxes pursuant to certain federal, state, provincial, and local sales tax laws. Estimated taxes are not included in the Order, instead the applicable invoice may contain final taxes in effect at the time of invoicing based on the address of Customer. If Customer is exempt from taxes, Customer shall provide a valid exemption certificate to BuildOps upon execution of the Order.
11) Third-Party Implementation.
a) If the Customer chooses to contract directly with a third party for Professional Services (“Third-Party Provider”), the following terms will apply:
i) Customer will pay applicable fees directly to the Third-Party Provider, not BuildOps, as agreed between Customer and such Provider. BuildOps is not a party to, and has no responsibility or liability under, any agreement between Customer and any Third-Party Provider. BuildOps makes no representations or warranties regarding any Third-Party Provider or its services, and BuildOps shall have no liability arising out of or related to any Third-Party Provider's acts, omissions, products, or services. Third-Party Providers are not authorized to make any promises or commitments on BuildOps’ behalf. Customer agrees to look solely to the applicable Third-Party Provider with respect to any claims, losses, or damages arising from Customer's use of or reliance on such Third-Party Provider's services.
12) Warranties and Disclaimers.
a) Limited Warranty. BuildOps warrants to Customer:
i) The SaaS Service will perform materially as described in the Documentation and BuildOps will not materially decrease the overall functionality during the Subscription Term (the “Performance Warranty”), and
ii) BuildOps will perform any Professional Services in a professional and workmanlike manner with reasonable skill and care (the “Professional Services Warranty”).
b) Warranty Remedy. If BuildOps breaches Section 12 (a) (Limited Warranty) and Customer notifies BuildOps of the defect within 30 days of discovering the issue, then BuildOps will use reasonable efforts to correct the non-conformity. If BuildOps’s reasonable efforts fail to remedy the breach of warranty within 60 days of Customer’s warranty claim, Customer may terminate any affected Order as relates to the non-conforming SaaS Service or Professional Services. BuildOps will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). These procedures are Customer’s exclusive remedy and BuildOps’s entire liability for breach of the warranties in Section 12 (a) (Limited Warranty). These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Integrations or other third-party systems, (c) Trials and Betas or other free or evaluation use, or (d) BuildOps’ failure to deliver any future functionality or features based on oral or written public statements made by BuildOps regarding future functionality or features.
c) Disclaimers. Except as expressly provided in Section 12 (a) (Limited Warranty), the Services are provided “AS IS.” BuildOps and its suppliers make no other commitments, assurances, warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. BuildOps does not warrant that its Service will be compatible with any Third-Party Integration, or other third party service, product, or software. Without limiting its express obligations in Section 4 (SLA and Support) and 5 (b) (Security), BuildOps does not warrant that Customer’s use of the Services will be uninterrupted or error-free or that the Services will meet Customer’s specific requirements, operate in combination with third-party services used by Customer or maintain Customer Data without loss. BuildOps is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside BuildOps’s control.
13) Term and Termination
a) Term. This Agreement starts on the Effective Date and shall continue to apply until all Orders have expired or been terminated in accordance with this Agreement.
b) Termination. Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay undisputed fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
c) Effect of Termination. Upon expiration or termination of (a) this Agreement, Customer’s access to Services will cease; and (b) any Order, then Customer’s access to the Services provided for under that Order will cease. At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete the disclosing party’s Confidential Information. Confidentiality provisions contained in this agreement survive so long as the receiving party has the disclosing party’s Confidential Information in their possession or control.
d) Survival. These Sections survive expiration or termination of this Agreement: 3 (Restrictions), 5 (d) (Data Export), 6 (Customer Obligations), 10 (b) (Fees), 10 (e) Taxes), 12 (c) (Disclaimers), 13 (c) (Effect of Termination), 13 (d) (Survival), 14 (Ownership), 15 (Limitations of Liability), 16 (Indemnification), 17 (Confidentiality), 19 (AI Features), 20 (Assignment), 21 (Governing Law, Jurisdiction, Venue), 22 (Attorneys’ Fees and Costs), 23 (Notices), 24 (Entire Agreement), 25 (Amendments and Changes), 26 (Waivers and Severability), 30 (Compliance with Laws), and 35 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
14) Ownership.
a) Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for BuildOps’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Data and Customer Materials provided to BuildOps. Except for Customer’s use rights in this Agreement, BuildOps and its licensors retain all intellectual property and other rights in the Services, deliverables and related BuildOps technology, templates, formats, and dashboards, including any modifications or improvements to these items made by BuildOps. BuildOps may generate and use Usage Data to operate, improve, analyze, and support the Services and for other lawful business purposes, provided Usage Data shall not contain Customer Data. If Customer provides BuildOps with feedback or suggestions (“Feedback”) regarding the Services or other BuildOps offerings, BuildOps may use such Feedback without restriction or obligation, provided Feedback shall shall not contain Customer Data or reference Customer as the source.
15) Limitations of Liability.
a) Exclusions of Liability. Except for Section 15 (c) (Uncapped Claims), neither party will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, lost revenues, loss of goodwill, interruption of business or for any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
b) Liability Cap. Subject to Section 15 (c) (Uncapped Claims), each party’s entire aggregate liability arising out of or related to this Agreement will not exceed in the aggregate the amounts paid or payable by Customer to BuildOps during the prior 12 months under this Agreement.
c) Uncapped Claims. Nothing in Section 15 (a) (Exclusions of Liability) or 15 (b) (Liability Cap) shall be taken to limit or exclude either party’s liability for (a) breach of Section 3 (Restrictions); (b) indemnification obligations in Section 16 (Indemnification); (c) a party’s infringement, misappropriation, or violation of the other party’s intellectual property rights; (d) willful misconduct; or (e) death, personal injury, or damage to tangible property.
d) Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 15 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Notwithstanding the limitations set forth in this Section 15 (Limitations of Liability), there shall be no limit to either party’s liability arising out of Customer’s payment obligations or liability which cannot be excluded or limited under applicable law.
16) Indemnification.
a) Indemnification by BuildOps. BuildOps will (a) defend Customer from and against any unrelated third-party claim (“Claim”) to the extent alleging that the Services infringe a third party’s patent, copyright, trademark, or trade secret, and (b) indemnify and hold harmless Customer against any damages or costs finally awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by BuildOps resulting from the Claim.
b) Indemnification by Customer. Customer will (a) defend BuildOps from and against any unrelated third-party claim to the extent resulting from Customer Data, Customer Materials (if applicable), or Customer’s breach or alleged breach of Section 6 (Customer Obligations), and (b) indemnify and hold harmless BuildOps against any damages or costs finally awarded against BuildOps (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the Claim.
c) Procedures. The indemnifying party’s obligations in this Section 16 (Indemnification) are subject to receiving (a) prompt notice of the claim, provided, the right to indemnity shall not be affected by a failure or delay by the indemnified party in giving notice, unless the rights and remedies of the indemnifying party have been prejudiced by such delay, (b) the exclusive right to control and direct the investigation, defense and settlement of the Claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any Claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services when BuildOps is the indemnifying party). The indemnified party may participate in a Claim with its own counsel at its own expense. Notwithstanding the foregoing, any costs, or expenses (including attorneys’ fees) incurred by the indemnified party prior to giving notice and tendering the defense to the indemnifying party shall be borne by the indemnified party.
d) Mitigation and Exceptions. In response to an actual or potential infringement Claim, if required by settlement or injunction or as BuildOps determines necessary to avoid material liability, BuildOps may at its option: (a) procure rights for Customer’s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. BuildOps’s obligations in this Section 16 (Indemnification) do not apply: (a) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by BuildOps (including Third-Party Integrations), (b) to infringement resulting from Software other than the most recent release provided by BuildOps (where Customer has been notified about such recent release), (c) to unauthorized use of the Services, (d) if Customer settles or makes any admissions about a Claim without BuildOps’s prior consent, (e) if Customer continues to use the Services (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (f) to Trials and Betas or other free or evaluation. Sections 16 (Indemnification) sets forth Customer’s exclusive remedy and BuildOps’s entire liability regarding infringement of third-party intellectual property rights.
17) Confidentiality.
a) Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Without limiting the foregoing (a) the terms and conditions of this Agreement and any technical or performance information about any of the Services shall be treated exclusively as BuildOps’s Confidential Information, as well as price lists or other financial information; and (b) Customer Data shall be treated exclusively as Customer’s Confidential Information.
b) Obligations. As a receiving party, each party will (a) not disclose the other party's Confidential Information to third parties except as permitted in this Agreement, including Section 5 (a) (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its Affiliates, employees, agents, contractors, and other representatives having a legitimate need to know (including, for BuildOps, the subcontractors referenced in Section 28 (Subcontractors), provided it remains responsible for their compliance with this Section 17 (Confidentiality), and they are bound to confidentiality obligations no less protective than this Section 17 (Confidentiality).
c) Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
d) Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 17 (Confidentiality).
e) Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
18) Trials and Betas.
a) If Customer receives access to the Services or Service features on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation. Trials and Betas are optional and either party may terminate participation or discontinue using Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that BuildOps may add, remove, change, separately release, or never release. Trials and Betas and their features and performance metrics comprise BuildOps Confidential Information. Notwithstanding anything else in this Agreement, BuildOps provides Trials and Betas “AS IS.”
19) AI Features.
a) Overview. The Services include AI Features that allow Customer to generate text, images, audio, video, and other content based on user Input.
b) Input and Output. Customer may provide Input to AI Features and receive content generated and returned by AI Features based on that Input ("Output"). Input and Output, excluding any BuildOps Intellectual Property, are Customer Data. As between the parties, Customer owns all right, title, and interest in Input and Output.
c) Use of Customer Data for AI Training. BuildOps may use Customer Data, including Input or Output, to train its local version of the AI or machine learning models so long as Customer has not opted out of permitting BuildOps to use its Customer Data for this purpose (please note, some features may not be available to Customers who have opted out). BuildOps may also use Feedback (such as rating Output) and Usage Metrics to improve Services, including AI Features.
d) Similar Output. Due to the nature of machine learning technologies, Output may not be unique across users, and AI Features may generate the same or similar Output for other customers. Customer acknowledges that AI Features may provide similar Output to other customers.
e) Customer Responsibilities for AI Use. Customer is solely responsible for evaluating Output for accuracy, completeness, and suitability for Customer's intended use case. Customer will review and verify all Output before relying on it in business operations. Customer will ensure that its Inputs and use of the BuildOps AI Features do not violate applicable laws. Further, Customer will not, and will not permit anyone else to:
i) use the AI Features or Inputs or Outputs to infringe upon any third-party rights, including any intellectual property rights,
ii) use the AI Features or any Inputs or Outputs to develop, train or improve any other AI or ML models (separate from authorized use of the Services under the Agreement),
iii) represent any Output as being an original work or a wholly human-generated work, or as being approved or vetted by BuildOps,
iv) use the AI Features for automated decision-making or for other processes that have legal or similarly significant effects on individuals, unless it does so with adequate human review and in compliance with all applicable laws,
v) use the AI Features for purposes or with effects that are illegal, discriminatory, harassing, bias-inducing, harmful or unethical,
vi) develop foundation models or other large scale models that compete with BuildOps’s AI Features,
vii) to generate spam, or any content for dissemination for illegal activities, or in relation to electoral campaigns at any level of government, or to abuse, harm, interfere with, or disrupt any services (or enable others to do the same),
viii) use the Services in a manner outside the scope of the Agreement.
f) AI Disclaimers. Due to the nature of the AI Features, BuildOps does not represent or warrant: (a) that Output does not incorporate or reflect third-party content or materials, or (b) that Output will not infringe third-party intellectual property rights. BuildOps does not endorse or guarantee the Outputs to be accurate, complete, or current. As such, Customer should independently review and verify all Outputs as to usefulness, appropriateness, accuracy, fitness for its purpose, and any other quality relevant to Customer’s use cases and/or applications. Customer is solely responsible for the content of the Input and its use of Output. For avoidance of doubt, the warranty disclaimers and limitations of liability outlined in the Agreement also apply to Customer’s use of the AI Features. Customer should not rely on factual assertions in Output without independently verifying accuracy.
g) Claims of intellectual property infringement or misappropriation by Output are not included in the covered third party claims for indemnification by BuildOps under the applicable Agreement between BuildOps and Customer.
h) In the event BuildOps enables customers to use their own API key to access a third-party AI model provider through the Service ("Bring Your Own Key"), Customer's use of such third-party AI model is governed solely by Customer's agreement with the applicable provider, and BuildOps makes no representations or warranties, provides no indemnification, and disclaims all liability with respect to the availability, performance, output, security, or costs of such third-party AI model.
20) Assignment.
a) Except as otherwise set forth in this Agreement, neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities, with reasonable notice to the other party. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
21) Governing Law, Jurisdiction and Venue.
a) Unless otherwise agreed to herein, this Agreement is governed exclusively by the laws of the State of California and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Los Angeles, California and both parties submit to the exclusive jurisdiction of those courts.
22) Attorneys’ Fees and Costs.
a)The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
23) Notices.
a) Except as set out in this Agreement or unless otherwise required by applicable laws, any notice or consent under or in connection with this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered mail (return receipt requested), (c) one day after dispatch if by a commercial overnight delivery service, or (d) upon receipt if by email, with proof of delivery and receipt. Either party may update its address with notice to the other party. All notices to BuildOps must include a copy emailed to legal@BuildOps.com. Non-legal operational notices will be sent to Customer’s assigned BuildOps Administrator by email or through the SaaS Service.
24) Entire Agreement.
a) This Agreement sets out the parties’ entire agreement regarding its subject matter and supersedes any and all prior and contemporaneous agreements, promises, assurances and understandings between the parties (whether written or oral) regarding its subject matter. In the event of any conflict among the terms of the ToS, Order(s), the DPA and the Policies, the order of precedence shall be as follows: (a) the Order, (b) the DPA, (c) the ToS, and (d) the Policies, including any respective exhibits to the foregoing. Any translated versions of the Agreement in a language other than English are provided as a courtesy only. In the event of any conflict or discrepancy between any translated version of the Agreement and the English language version, the English language version shall prevail. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
25) Amendments and Changes.
a) BuildOps may update or modify the ToS from time to time by providing Customer at least thirty (30) days’ prior written notice. Unless otherwise stated in the notice, the updated ToS will become effective at the end of such thirty (30)-day notice period. Customer’s continued use of the Services after the effective date of the updated ToS constitutes acceptance of the updated terms. If Customer objects to the update, Customer must notify BuildOps in writing before the effective date, and the parties will work in good faith to address the objection. BuildOps may modify the Policies at any time to reflect new features or changing practices, provided that such modifications will not materially decrease BuildOps’s overall obligations or Customer’s rights under the relevant Policy. The terms in any past, contemporaneous or future Customer purchase order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by BuildOps; any of these documents are for administrative purposes only and have no legal effect.
b) BuildOps may, in its sole discretion, modify, update, or discontinue any features or functionality of the Service at any time without prior notice to Customer, so long as no such changes materially change the purpose of the Service. BuildOps may make material changes to the Service, including changes that materially affect the features, functionality, or purpose of the Service, upon at least thirty (30) days’ prior written notice to Customer. If Customer does not raise written concerns regarding the material change before the effective date of such change, or if Customer continues to access or use the Service after the effective date of such change, Customer will be deemed to have accepted the change.
26) Waivers and Severability.
a) A waiver of any right or remedy must be signed by the waiving party’s authorized representative in order to be effective and cannot be implied from conduct and shall not be deemed a waiver of any subsequent right or remedy. Any delay or failure to exercise any right or remedy shall not waive that right or remedy. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains valid and in effect.
27) Force Majeure.
a) Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
28) Subcontractors.
a) BuildOps may use subcontractors and permit them to exercise BuildOps’s rights, but BuildOps remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
29) Independent Contractors.
a) The parties are independent contractors, not agents, partners or joint venturers, and nothing in this Agreement or any Order entered into pursuant to this Agreement is intended to or shall operate to create a partnership between the parties or authorize either party to act as agent for the other.
30) Compliance with Laws.
a) Each party’s respective provision and use of the Software and Services shall comply with Laws, including applicable anti-bribery and anti-money laundering laws and regulations.
31) Export.
a) Each party agrees to comply with all relevant U.S. and foreign export and import control Laws or regulations applicable to its performance under this Agreement. Each party represents and warrants that (a) it is not listed on any Sanctions Authority’s list of prohibited or restricted parties; (b) it is not subject to any sanctions or trade restrictions, or any other applicable economic sanctions or trade restrictions administered or enforced by a Sanctions Authority; and (c) it is not located in, does not operate in, and is not a national of a country that is subject to an embargo administered or enforced by a Sanctions Authority or that has been designated by the U.S. government as a “terrorist supporting” country. Customer agrees (a) not to access or use any of the Services in violation of any U.S. export embargo, prohibition or restriction, or any other applicable trade restrictions and (b) that it will not submit to any of the Services any information controlled under the U.S. International Traffic in Arms Regulations.
32) Open Source.
a) The Software may incorporate third-party open source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement. Customer’s internal use of the unmodified Software as authorized in this Agreement will not require Customer to comply with the terms of the OSS licenses.
33) Insurance.
a) During the Subscription Term, BuildOps will carry industry standard insurance, (e.g. general commercial liability, errors and omissions (including cyber), worker’s compensation), appropriate for the Services provided hereunder.
34) Government End-Users.
a) This section is applicable to U.S. government Users only. Elements of the Services are commercial computer software. If Customer or any of its Users is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of any of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
35) Definitions.
a) “Administrator” means a User that Customer has designated as administrator(s) with certain rights of control and management over Customer’s SaaS Service account, including management of Users and Customer Data. By designating a User as an Administrator, Customer authorizes Administrator to make decisions within the Service on Customer’s behalf.
b) “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
c) "Agreement" means this ToS together with all Orders, exhibits, Policies, and the DPA.
d) “AI Feature(s)” means any parts of the Service, including any of BuildOps’s AI tools, that make use of large language models (“LLMs”) or other machine learning (“ML”) and/or artificial intelligence (“AI”) to generate Output, which display significant generality and are capable of competently performing a wide range of distinct tasks, including when trained with a large amount of data using self-supervision at scale, and that can be integrated into a variety of downstream systems or applications.
e) “Customer Data” means any data, content, or materials that Customer (including its Users) submits to or creates within the SaaS Services.
f) “Customer Materials” means materials, systems, and other resources that Customer provides to BuildOps in connection with Professional Services.
g) “DPA” means the Data Processing Addendum between the parties, the current version of which is at https://marketing.buildops.com/hubfs/PDF/April%202026%20-%20TOS%20Update%20-%20pdf/CUSTOMER%20DATA%20PROCESSING%20ADDENDUM.pdf
h) “Documentation” means BuildOps’s usage guidelines and standard technical documentation for the Service, which can be accessed at https://help.buildops.com/en/.
i) “High-Risk Activities” means activities where use or failure of the Services could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
j) “Input(s)” means any data, content or materials that Customer submits to BuildOps’s AI Features, such as an audio file, video file, document, image, or text (including any output parameters, such as aspect ratio, style, etc.) to receive the Output.
k) “Laws” means all local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data applicable to BuildOps and Customer in their respective use and provision of the Services.
l) “Output(s)” means the resulting image, text, text effects, vector graphic file, audio file, video file or any other content, which is provided to Customer within the Services and/or BuildOps’s AI Features based on the Inputs.
m) “Order” means an order for access to and/or provision of Services that references the ToS, that is executed by the Customer and accepted by BuildOps.
n) “Policies” means the Privacy Policy, Security Policy, Support Policy, and SLA.
o) “Privacy Policy” means the Privacy Policy, the current version of which is at https://buildops.com/privacy-policy/
p) “Prohibited Data” means any (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (c) other information subject to heightened privacy regulation or protection under specific Laws (d) social security numbers, driver’s license numbers or other government ID numbers (e) government defense data, classified data, controlled unclassified data or any other government data requiring additional security controls or compliance with heightened security requirements.
q) “Professional Services” means the non-recurring implementation, onboarding, enablement, training, data migration, integration, custom development, specialized consulting, or other professional services provided by BuildOps in connection with the SaaS Service, as expressly identified in the applicable Order Form or Statement of Work. Professional Services does not include general customer support, which is governed by the Support Policy.
r) “SaaS Service” means BuildOps’s proprietary cloud service, as identified in the relevant Order and as modified from time to time by BuildOps. The SaaS Service includes the Software and Documentation but does not include any Professional Services deliverables or Third-Party Integrations.
s) "Sanctions Authority" means the United States and its respective governmental, judicial, or regulatory institutions, agencies, departments, and authorities.
t) "Security Policy” means the BuildOps Security Policy, the current version of which is available at: https://marketing.buildops.com/hubfs/PDF/April%202026%20-%20TOS%20Update%20-%20pdf/BuildOps%20Security%20Policy.pdf
u) “Services” means the SaaS Services, the Professional Services, and any other services BuildOps may provide to Customer under this Agreement.
v) “SLA” means the BuildOps Service Level Agreement, the current version of which is available at: https://marketing.buildops.com/hubfs/PDF/April%202026%20-%20TOS%20Update%20-%20pdf/BuildOps%20SLA%20Policy.docx.pdf
w) “Software” means any BuildOps client software, scripts, apps, or other code provided to Customer by BuildOps for use with the Service.
x) "Subscription Term” means the term for Customer’s use of the SaaS Service as identified in an Order.
y) “Support” means support for the SaaS Service provided to Customer as described in the Support Policy. Customer will receive support at no additional cost. If Customer elects to purchase enhanced or premium support, this will be identified in the applicable Order.
z) “Support Policy” means the BuildOps Support Policy, the current version of which is at: https://marketing.buildops.com/hubfs/PDF/April%202026%20-%20TOS%20Update%20-%20pdf/BuildOps%20Support%20Policy.pdf
aa) “Third-Party Integration” means any platform, add-on, service, product, app, or integration not provided by BuildOps that Customer elects to integrate or enable for use with the Services.
bb) “Usage Data” means data relating to Customer’s use and consumption of the Services including BuildOps’s technical logs, data, and learnings about Customer’s use of the Services, but excluding Customer Data.
cc) “User” means any individual aged 16 or older who Customer permits or invites to access and use the SaaS Service as further described in the Documentation, which may include Customer’s and its Affiliates’ employees, consultants, contractors or other third parties.
See Terms of Service - 2025 here.
