McGraw-Hill Construction User Agreement

Last updated February 16, 2010

This User Agreement (“Agreement”) is a legal agreement between you (“you” or “Customer”) and McGRAW-HILL CONSTRUCTION, a division of The McGraw-Hill Companies, Inc. (“MHC”), governing your use of all fee-based products and services that you order from the MHC website (collectively, the “Services”).  This Agreement is in addition to, and does not supersede, (a) the MHC website Terms of Use located at http://www.construction.com/termsofuse.asp (“Terms of Use”), which governs your use of the MHC website (the “MHC Site”), and (b) any written (i.e., non-electronic) agreement entered into by you and MHC governing any additional products and services (“Additional Agreement”).  In this Agreement, you and MHC are each a “party” and together, the “parties.”

Please read this Agreement carefully before checking the “I Agree” box to complete your account registration or your purchase.  By checking the “I Agree” box, you agree to be bound by the terms and conditions of this Agreement.  If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these terms and conditions, in which case the terms “you” and “Customer” refer to that entity.  If you do not have such authority, or if you do not agree to the terms of this Agreement, do not register for an account (“Register”) or use the Services.

MHC reserves the right to change the terms and conditions of this Agreement at any time in its sole discretion.  Notice of any changes will be posted on the MHC Site on the account log-in page.  Any changed terms will be effective immediately upon such posting and will apply as of the date they were added to this Agreement.  If any of these changes are unacceptable to you, do not access or use your Registered account or the Services.  Use of your Registered account or the Services following the posting of any changes to this Agreement constitutes acceptance of those changes by you.  Therefore, it is your responsibility to check the MHC Site for any changes.

1.  Persons Under Age 18.  The MHC Site is to be used solely by persons age 18 and older.  By Registering or using the Services, you represent that you are at least 18 years old.  If you are not at least 18 years old, you may not Register or use the Services.

2.  Privacy.  Please carefully review MHC’s privacy policy located at http://www.construction.com/privacypolicy.asp and www.mcgraw-hill.com/privacy.html (“Privacy Policy”), which is incorporated into this Agreement.  By Registering or using the Services, Customer expressly consents to the use and disclosure of Customer’s personally identifiable and other information as described in the Privacy Policy or elsewhere in this Agreement, and MHC is entitled to rely on the information Customer provides or that otherwise is provided from your Registered account under your username and password.  All email notifications under this Agreement will be sent to the email address that Customer provides at the time of Registration.

3.  License and Restrictions.  Subject to the terms and conditions of this Agreement, MHC hereby grants Customer a limited, non-exclusive, non-transferable license to (a) access and use the Services, (b) retrieve, download and print one (1) complete copy of any data provided as part of the Services, including plans, specifications, addenda, and other documents (“Data”), and (c) access and use any software that is included as part of the Services (“Software”).

The Services, Data, and Software may be used only (a) for Customer’s internal business purposes, and (b) by Customer and its employees.  Sharing of usernames and passwords with third parties is strictly prohibited except among Customer’s employees, provided that only one employee at a time may access and use the Services using Customer’s username and password. In accessing and using the Services, Customer will comply with all laws and will not represent itself as any other party or otherwise provide any false or misleading information, and will ensure that its employees comply with the foregoing. 

Some of the Data may consist of copyrighted materials owned by third parties, including architects, engineers, and others.  These copyrighted materials are protected under U.S. Copyright law, Title 17, United States Code.  Any reproduction, alteration or reuse of these materials without express written permission of the copyright owner is prohibited.  Some documents contained on the Services may be images and facsimiles of originals held by the architect or engineer; in any instances of conflicting information between the electronic documents and the originals, the original documents will control. These Services in no way obligate the architect, engineer or owner whose documents are included in the Services to provide additional or updated bidding documents released as addenda.

Except as expressly provided in this Agreement, no portion of the Services may: (a) be copied, modified or sold, or disclosed, distributed, transferred or otherwise made available to others, in any way, without MHC’s prior written consent; or (b) be used in any manner that competes with MHC and/or the Services.  Customer agrees to certify in writing, at MHC’s request, whether Customer and all employees are in compliance with this Agreement, and MHC reserves the right to monitor and audit the use of the Services by Customer and its employees in order to ensure compliance with this Agreement.

4.  Customer Content.  As part of the Services, MHC may allow Customer to provide MHC with certain content, information and/or materials owned or licensed by Customer (“Customer Content”). The Customer Content shall either be: (a) hosted by MHC on behalf of Customer in connection with Customer’s use of the Services (“Hosted Content”); or (b) published, displayed and/or distributed by MHC in connection with the Services (“Distributed Content”).  Customer hereby authorizes MHC to host the Hosted Content in connection with Customer’s use of the Services; and to publish, display and distribute the Distributed Content in connection with the Services through MHC’s products and services as well as through the products and services of licensors and MHC’s resellers and distributors.

If Customer submits Customer Content, Customer represents and warrants that: (a) Customer owns or possesses sufficient rights to the Customer Content to provide it to MHC hereunder and to allow MHC to use the Hosted Content, and to use, publish, display, distribute and make available the Distributed Content to others, without infringing or violating the rights of third parties; and (b) the Customer Content is free from viruses or destructive properties (collectively, “Harmful Code”).  MHC has the right, but not the obligation, to screen the Customer Content for Harmful Code.  Customer and its employees assume all risks, and MHC and its licensors shall not be responsible or liable for disclosure, distribution or replacement of, or loss or damage to, any Customer Content, or for damage caused to Customer or to its users by Harmful Code, or for use by third parties of any Customer Content, whether or not authorized by Customer. 

MHC reserves the right to limit disk space for Customer Content hosted by or on behalf of Customer.  MHC reserves the right to decide in its sole discretion what sections or subsections of the Customer Content (if any) will be classified or indexed.  MHC has the right, but not the obligation, to edit or exclude any Customer Content that MHC deems in its sole discretion to be in any way (i) inaccurate, (ii) infringing on any intellectual property rights, (iii) misleading, disparaging, obscene or invasive of privacy, or (iv) otherwise offensive, inappropriate or unlawful. Customer is solely responsible for reviewing the form, content and quality of all Customer Content.  MHC and its licensors, resellers and distributors will have no responsibility or liability for errors or omissions in, or quality of, Customer Content.

5.  Fees and Charges.  Depending on the Services selected, Customer may purchase the Services on a pay-per-project or monthly subscription basis.  Once Customer has purchased a project via the Services, Customer will be granted access to the Data contained in that project and any subsequent updates until 30 days after the project’s bid date or last update date.  Customer agrees to pay all fees, charges, and applicable taxes (collectively, “Fees”) incurred in connection with Customer’s username and password for the Services at the rates in effect when the Fees were incurred.  For pay-for-project Services, MHC may change the Fees in effect, or add new Fees, at any time without notice by posting new Fees or additional Fees online on the purchase screens.  For subscription Services, MHC may change the Fees in effect, or add new Fees, at any time upon 30 days’ notice by email; the new or additional Fees will take effect the following billing cycle unless this Agreement is terminated earlier in accordance with this Agreement.

All Fees will be billed to the credit card Customer designates during Registration or at the time of purchase and Customer hereby authorizes MHC to charge the Fees to Customer’s credit card.  All Fees are non-refundable.   MHC will send the Customer an acknowledgement by email of any charges to the Customer’s credit card account.  If the credit card is invalid or otherwise fails to accept charges, Customer will receive an email notification that subscription renewal failed and Customer’s subscription will be inactivated.  Customer must then contact eSupport@construction.com to reactivate the subscription within 30 days of receiving the email notification in order to retain Customer’s saved searches and other customizations made to Customer’s account.  If Customer believes that Customer’s username and password have been used to access the Services without Customer’s authorization, please contact MHC Customer Care at the telephone number or email address posted in the McGraw-Hill Construction Help Center -http://www.construction.com/help/DodgeProjectCenter/policies/terms.asp - without delay.  As between the parties, Customer is responsible for paying any charges billed to Customer’s credit card by an unauthorized third party.  MHC SHALL NOT BE LIABLE FOR ANY AMOUNTS BILLED TO CUSTOMER’S CREDIT CARD BY A THIRD PARTY WHICH WERE NOT AUTHORIZED BY CUSTOMER.

6.  Termination.  MHC may modify, add to, delete, or discontinue the Services or portions thereof, or change the media or the format of the Services, at any time in its sole discretion without liability to Customer, any employees and/or any other parties. To the extent commercially practicable, MHC will provide Customer with notice of any material change in the Services.  At any time with or without notice to Customer, MHC may terminate this Agreement and/or cease delivery of one or more Services for any breach of this Agreement by Customer or its employees, as determined by MHC in its sole discretion, including, without limitation, misuse or unauthorized use of Services, non-payment, or for other reasons that MHC determines in good faith are necessary or appropriate, including if MHC suspects that Customer is using or attempting to use the MHC Site in any way that violates the Terms of Use or applicable laws, rules or regulations.  MHC will not be liable to Customer for any loss or damage that may result from its refusal to provide Customer access to the Services or any portions of them.

For subscription Services, Customer may terminate this Agreement at any time by contacting MHC Customer Care at the telephone number or email address posted on the Help Center.  MHC will not give refunds for unused days.

Upon any termination of this Agreement and/or any Services, Customer shall immediately discontinue all use of the Services and shall destroy all copies of the Software and Data, along with all copies, adaptations and merged portions thereof in any form, then in the possession or under the control of Customer.

7.  Ownership Rights.   As between MHC and Customer, all Services (including, without limitation, all Software and Data therein) are proprietary to and owned by MHC and/or its licensors and are protected by applicable laws, including, without limitation, copyright, trademark and trade secret laws.  All rights not expressly granted hereunder are reserved solely for MHC and/or its licensors. Customer shall take reasonable actions to protect the rights of MHC and its licensors in the Services. Customer shall not: (i) modify, reverse engineer, disassemble, decompile or store the Services or any portions thereof (except as expressly permitted in this Agreement); (ii) disable any licensing or control features of the Services or any portions thereof; (iii) use any data mining, robots or similar data-gathering or extraction methods, (iv) remove or modify any copyright or other proprietary notices relating to the Services, or (v) create derivative works that are based on any portion of the Services, all rights to which are owned exclusively by MHC and/or its licensors.

8.  Disclaimer of Warranties. MHC and its licensors do not represent or guarantee that the Services will be error-free or uninterrupted.  All Services are provided “AS IS,” and MHC AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.   NEITHER MHC NOR ITS LICENSORS WARRANT THE RESULTS TO BE OBTAINED BY USE OF THE SERVICES. Customer shall comply with all laws and assumes all risks of selection and use of the Services. MHC’s sole obligation and Customer’s sole remedy for defective Services shall be for MHC, at MHC’s option, to re-perform the defective Services or, subject to Section 9, to refund the amount paid by Customer for the defective Services, provided that Customer and its employees are not in breach of this Agreement.

9.  Limitation of Liabilities.   IN NO EVENT SHALL MHC OR ITS LICENSORS BE LIABLE FOR MONETARY DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE LEGAL THEORY) IN AN AMOUNT GREATER THAN THE FEES PAID BY CUSTOMER DURING THE MONTH PRIOR TO THE DATE THAT THE CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. NEITHER MHC NOR ITS LICENSORS WILL BE LIABLE FOR LOSS OF OR DAMAGE TO ANY CUSTOMER CONTENT, RECORDS OR DATA; OR FOR CONSEQUENTIAL DAMAGES, LOST PROFITS OR INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. No action or lawsuit may be brought by or on behalf of Customer under this Agreement more than one year after the cause of the action has accrued. 

10.  Indemnification  Customer shall defend, indemnify and hold harmless MHC, its affiliates, licensors and their respective directors, officers, employees and agents (the “Indemnitees”) from and against any and all claims, losses, liabilities, judgments, damages, costs and/or expenses (including, without limitation, reasonable attorneys’ fees) arising from or in connection with or relating to: (i) any breach of this Agreement by Customer or any employee; (ii) the misuse or unauthorized use of the Services or any portions thereof by Customer or any employee; or (iii) the Customer Content and/or any other content, materials, data or information provided to MHC or its licensors by or on behalf of Customer.

11.  Miscellaneous. This Agreement shall be governed by the internal laws of the State of New York.  Customer irrevocably consents to the exclusive jurisdiction of the courts located in the County and State of New York for adjudicating all claims arising out of this Agreement.  If Customer or its employee breaches this Agreement, MHC shall be entitled to recover attorneys' fees and other out-of-pocket expenses incurred in enforcing this Agreement.  This Agreement, including the Privacy Policy, together with the Terms of Use, is the complete and entire agreement between the parties with respect to Services.  In the event of a conflict between the Terms of Use and this Agreement, this Agreement governs.  In the event of a conflict between this Agreement and an Additional Agreement, the Additional Agreement governs.  Neither MHC nor any licensor is responsible or liable for events or circumstances beyond its reasonable control.  This Agreement may be modified only in writing, signed by an authorized person of each party.  No waiver of any term is a continuing waiver.  If any provision of this Agreement is held to be ineffective, unenforceable, or illegal for any reason, all other terms will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated in this Agreement is not affected in any manner materially adverse to either party.  Customer may not assign or transfer this Agreement or any rights hereunder, and any such assignment is null and void.  Sections 2, 4, and 6-11 shall survive termination of this Agreement.  Customer represents and warrants that it has the power, authority and right to do so on behalf of itself or for the party that it is representing.  MHC’s licensors shall be third-party beneficiaries under this Agreement.