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USER AGREEMENT


This document is a legal agreement ("Agreement" hereafter) between you and Oracle America, Inc. ("Oracle") describing the terms and conditions applicable to your use of this Web site ("the GradeBeam.com Web Site"). Please examine this Agreement carefully and understand its contents fully before using the GradeBeam.com Web Site. By using the GradeBeam.com Web Site, you are agreeing to be legally bound by these terms and conditions. If you represent a company or other entity, you also are warranting that you are authorized to enter into this Agreement on behalf of that party. (This Agreement pertains to any successor company to Oracle, regardless of legal name). If you have ordered BidOrganizer under the terms of this Agreement, all references to GradeBeam.com Web Site shall refer to your use of BidOrganizer that you access via bidorganizer.texturacorp.com.


Disclaimer:

The GradeBeam.com Web Site, https://www.gradebeam.com, is managed by GradeBeam.com and provided as a service to its suppliers, customers and the general public.

Users of this web site are responsible for checking the accuracy, completeness, currency and/or suitability of all information. Oracle makes no representations, guarantees, or warranties as to the accuracy, completeness, currency, or suitability of the information provided via this GradeBeam.com Web Site. Oracle specifically disclaims any and all liability for any claims or damages that may result from providing the GradeBeam.com Web Site or the information it contains, including any web sites maintained by third parties and linked to the GradeBeam.com Web Site.

The responsibility for content rests with the organizations who are providing the information. The inclusion of links from this GradeBeam.com Web Site does not imply endorsement by Oracle. Specific questions regarding a document should be directed to the appropriate organization and not to Oracle. Oracle makes no effort to independently verify, and does not exert editorial control over, information on pages outside of the "www.gradebeam.com" domain.


Conduct policy:

The GradeBeam.com Web Site users shall not upload to, or distribute or otherwise publish through, the GradeBeam.com Web Site any content which is libelous, defamatory, obscene, pornographic, abusive or violates any law or standards of public decency, or which contains viruses, "worms", "Trojan horses" or any other harmful properties, or use the GradeBeam.com Web Site for, or to further, any illegal, unethical or immoral purposes. Without the express prior written consent of Oracle, users shall not post advertisements, solicit business or otherwise transmit any material advertising the commercial availability or quality of any property, goods, or services on the GradeBeam.com Web Site or otherwise through Oracle (including by facsimile), provided that nothing in this sentence shall limit the use of invitations-to-bid or bids in response thereto so long as such communications do not contain material advertising the commercial availability or quality of any property, goods, or services. Users shall not use the GradeBeam Web Site in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise). Users shall not falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded. Users shall not restrict or inhibit any other user from using and enjoying the GradeBeam.com Web Site, harvest or otherwise collect any information about other users or companies listed on the GradeBeam.com Web Site, create a false identity for the purpose of misleading others, download or otherwise copy or provide (whether or not for a fee) to a person or entity any directory of users of the GradeBeam.com Web Site or other user or usage information or any portion thereof. GradeBeam.com may, in its sole discretion, immediately terminate any account which it believes is transmitting or is otherwise connected with any spam or other unsolicited bulk messages.

As a user, you are responsible for your own communications and are responsible for the consequences of their posting. You agree to not do the following things: post material that is copyrighted, unless you are the sole copyright owner or have the permission of the copyright owner to post it; post material that reveals trade secrets, unless you own them or have the permission of the owner; or post material that infringes on any other intellectual property rights of others or on the privacy or publicity rights of others.

Oracle does not represent or guarantee the truthfulness, accuracy or reliability of any communications posted by other users or endorse any opinions expressed by users. You acknowledge that any reliance on material posted by other users will be at your own risk.

Oracle does not screen communications in advance and is not responsible for screening or monitoring material posted by users. If notified by a user of communications which allegedly do not conform to this Agreement, Oracle may investigate the allegation and determine in good faith and its sole discretion whether to remove or request the removal of the communications. Oracle has no liability or responsibility to users for performance or nonperformance of such activities. Oracle reserves the right to expel users and prevent their further access to the GradeBeam.com Web Site for violating this Agreement or any laws and the right to remove any communications for any reason.


Links to Other Sites:

The GradeBeam.com Web Site may contain links to third party web sites. Links are provided solely as a convenience to you the user and not as an endorsement by Oracle of the contents of such web sites. Oracle is not responsible for the content of linked third party sites and does not make any representations regarding the content or accuracy of the materials on such sites. If you decide to access linked third party web sites, you do so at your own risk.


Changes to this Agreement:

This Agreement may be modified only by Oracle at any time without notice, and any such modification shall be effective immediately upon posting. By accessing and using the GradeBeam.com Web Site you agree to periodically review this Agreement and be bound by any modifications or amendments to earlier versions of this Agreement.


Communications:

You agree to receive any notices or communications sent from the Oracle staff or users. Any notice or communication to you may be made by either e-mail, fax or regular mail and may be sent to you at your address or fax number indicated on the GradeBeam.com Web Site.


Your Use Responsibility:

By accessing or using the GradeBeam.com Web Site, you assume any and all responsibility and risk of use of the GradeBeam.com Web Site and any services or products contained therein. Oracle does not and will not guarantee, represent or warrant that the GradeBeam.com Web Site will meet your requirements. The information included in the GradeBeam.com Web Site may include technical or other inaccuracies or typographical errors. Oracle does not review or substantiate any of the information, products, services or claims made on the GradeBeam.com Web Site.


Errors or Omissions:

The GradeBeam.com Web Site is provided on an "as is" basis and Oracle assumes no responsibility for errors or omissions in this GradeBeam.com Web Site or any other web site that may be referenced or linked to the GradeBeam.com Web Site. Oracle does not and will not guarantee, represent or warrant that defects in the GradeBeam.com Web Site will be corrected. Although Oracle uses certain security measures (as described in the Oracle Privacy and Security Statement), Oracle shall not be liable for any breach of security or privacy with respect to the GradeBeam.com Web Site, including any breach caused by any third party or which results in an unauthorized person or entity learning the contents of any message which is intended to be private.


No Liability for Use:

You agree that Oracle will not be liable for any direct, incidental, special, consequential or exemplary damages, resulting from the use of or the inability to use the GradeBeam.com Web Site, or from unauthorized access to, or alteration, theft, loss or destruction of, your network, systems, applications, data files, programs, procedures, information, or computer equipment (including through accident or fraud) (collectively, "Use"). Oracle shall not be liable for any Use (and you hereby irrevocably waive any and all claims regarding any Use, whether such claims are based in warranty, contract, tort, strict liability or otherwise).


Indemnification:

You agree to defend, indemnify and hold Oracle and its affiliates (and their respective directors, officers, members, employees, agents, representatives and attorneys) harmless from and against any and all claims, damages, costs, and expenses (including attorneys fees) arising from your use of the GradeBeam.com Web Site, including any errors, inaccuracies, misrepresentations or defects in any materials or information submitted by you.


Intellectual Property:

Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, software, video clips, and written and other materials that are part of the GradeBeam.com Web Site (collectively, the "Contents") are protected by copyrights, trademarks, trade dress and/or other intellectual properties owned or licensed to Oracle. The GradeBeam.com Web Site as a whole is protected by copyright and trade dress and all worldwide rights, titles and interests in and to the GradeBeam Web Site and the Content are owned by Oracle.


Trademarks:

The GradeBeam.com Web Site contains Oracle and third-party trademarks and service marks. All marks are the property of their respective companies. All rights in the intellectual property contained in the GradeBeam.com Web Site including copyright, trademarks, trade secret and patent rights are reserved. Access to the GradeBeam.com Web Site does not constitute a right to copy or use any of the intellectual property of Oracle or any other person, except as specifically provided herein. User covenants that it will take no action to register or otherwise interfere with or challenge such intellectual property rights.


Copies:

Oracle hereby authorizes you to make copies of the Contents (except for confidential or private information to which access is restricted) solely for your internal business use; provided, however, that you shall not have the right to display, transmit or distribute any copies of the Contents to any third parties (including permitting third parties to download, upload, copy or view the Contents). Without limitation of the foregoing, you shall not, directly or indirectly, (1) sell all or any portion of the Contents to any third party or (2) use or exploit the Contents in any way in connection with any web site (other than the GradeBeam.com Web Site) related to the construction industry. No right, title or interest in any downloaded materials or software is transferred to you as a result of any copying of the Contents for your internal business use. You agree that you shall not alter or remove any copyright notice or proprietary legend contained in the Content. You agree that any copy made shall include Oracle's copyright notice or any other notice included therein. No other permission is granted to you to print, copy, reproduce, distribute, transmit, upload, download, store, display in public, alter, or modify, create derivative works from, compile facts or information from, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Contents, the GradeBeam.com Web Site, or any related software. You agree not to derive or attempt to derive the source code, source files or structure of all or any portion of the Contents by reverse engineering, disassembly, decompiling or otherwise.


User Comments, Feedback And Submissions:

All comments, feedback, postcards, suggestions, ideas, and other information disclosed, submitted, conveyed or offered to Oracle on or by the GradeBeam.com Web Site or otherwise disclosed, submitted or offered in connection with your use of the GradeBeam.com Web Site, such as an invitation-to-bid or bid ("ITB") (collectively, "Comments") shall be and remain Oracle property. Such disclosure, submission or offer of any Comments shall constitute an assignment to Oracle of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Comments. Thus, Oracle will own exclusively all such rights, titles and interests and shall not be limited in any way in its use, commercial or otherwise, of any Comments. Oracle is and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay to user any compensation for any Comments; or (3) to respond to any user Comments.

You agree that no Comments or any other submission, including any ITB, submitted by you to the GradeBeam.com Web Site will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that no Comments or other submission submitted by you to the GradeBeam.com Site will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments you make.


Information That You Provide:

You may provide company information such as but not limited to subcontractor and/or supplier E-Mail addresses, fax numbers and/or contact information to be added to the GradeBeam.com Web Site database in connection with your use of the Gradebeam.com Web Site. You certify that this company information is accurate, you have an existing business relationship with any and all companies that you provide to Oracle and you request and authorized Oracle to contact each of the companies on your behalf, via facsimile, E-Mail or otherwise, in connection with the distribution of bid invitations, construction project information and/or any other messages sent through Oracle.

Oracle requires that the information you provide be true, accurate and up-to-date at all times. This includes, but is not limited to, information within a ITB, any representations made regarding qualifications and competency to respond to such ITBs posted, information concerning intellectual property ownership and rights thereto. In addition, you agree that no ITB, response to an ITB or any other communication transmitted by you or on your behalf through Oracle (including through the Gradebeam Web Site or by facsimile) will contain any advertisement or material advertising the commercial availability or quality of any property, goods, or services. We reserve the right to terminate your registration and access to our site if any information provided does not meet these requirements at any time.

Oracle assumes that you are the owner of, and/or have received all appropriate consent from the owners of, any and all material, information, intellectual property in any form, or other data you make available to Oracle. You are responsible for ensuring that the owner of the information has given you the permission to make the information available to other parties, whether to the general public or to specific groups or individuals. This permission must be royalty-free and grant the person(s) who see the information the non-exclusive right-to-use, transmit, modify, or display it as may be required to respond to a ITB.


Membership:

Oracle may designate certain organizations as "Members." Such designation does not confer any ownership interest in, or right to control, Oracle, but instead means that the designated organization has access to Member Services provided by Oracle as described below.


Eligibility:

Membership is open to legitimate and qualified organizations in the construction industry. This includes, but is not limited to: general contractors, specialty/subcontractors, suppliers of goods and services to construction firms, architect and engineers, buyers of construction services, and public agencies involved in regulation of the construction industry. Notwithstanding anything to the contrary in this document, Oracle may at its sole discretion refuse to accept an application for Membership and/or limit a Member's use of the services provided by Oracle at any time.


Membership Fee:

Each Member is assessed a Membership Fee. The Membership Fee is non-refundable and must be paid in full within 30 days of the Member's first login to the GradeBeam system; subsequent payments of the membership fee are due and payable on an annual basis within 30 days of the anniversary date of the first login. Failure to pay the Membership Fee in a timely manner is grounds for revocation of Membership. Oracle reserves the right to change the amount of the membership fee and/or the payment schedule at any time.


Fair Use Policy

As a Member of GradeBeam, you may send invitation-to-bid and project related fax messages. You also will have the option to subscribe for additional Premium Services that Oracle offers as described on the GradeBeam.com Web Site, all subject to the terms of this Agreement or another agreement specific to those additional services.

PLEASE NOTE, HOWEVER, THAT YOUR USE OF THE GRADEBEAM.COM WEB SITE SERVICE IS SUBJECT TO ORACLE'S "FAIR USE" POLICY. YOU WILL BE IN VIOLATION OF THIS POLICY IF, WITHIN ANY ANNUAL MEMBERSHIP PERIOD, YOUR FAX USAGE EXCEEDS MORE THAN THREE (3) TIMES THE AVERAGE LEVEL OF USAGE OF ORACLE'S CUSTOMERS OVER THAT ANNUAL PERIOD. FOR PURPOSES OF THIS POLICY, "USAGE" MEANS THE COMBINED NUMBER OF FAX PAGES SENT, AS DETERMINED BY ORACLE IN IT'S SOLE DISCRETION. AS AN ACCOMMODATION TO OUR CUSTOMERS, ORACLE CURRENTLY ENFORCES THIS POLICY ONLY WHERE USAGE EXCEEDS 25,000 COMBINED FAX PAGES IN ANY ANNUAL MEMBERSHIP PERIOD, WHICH IS SUBSTANTIALLY IN EXCESS OF THE ACTUAL ALLOWABLE USAGE UNDER THIS "FAIR USE" POLICY. NOTWITHSTANDING THIS ACCOMMODATION, WE RESERVE THE RIGHT TO AT ANYTIME ENFORCE THIS POLICY

IN ACCORDANCE WITH ITS TERMS (I.E., USAGE WITHIN ANY ANNUAL MEMBERSHIP PERIOD IN EXCESS OF MORE THAN THREE (3) TIMES THE AVERAGE LEVEL OF USAGE OF ORACLE'S CUSTOMERS OVER THAT ANNUAL PERIOD). IN THE EVENT YOU ARE DEEMED TO HAVE VIOLATED THIS POLICY, A ORACLE REPRESENTATIVE WILL ATTEMPT TO CONTACT YOU TO REACH AGREEMENT ON A REVISED PRICING PLAN WHICH WILL PERMIT YOU TO CONTINUE TO USE THIS PAID MEMBERSHIP SERVICE. HOWEVER, ORACLE RESERVES THE RIGHT TO TERMINATE OR SUSPEND YOUR ACCOUNT WITHOUT PRIOR NOTICE IN THE EVENT OF A POLICY VIOLATION.


Member Services:

Certain services provided by Oracle, hereinafter referred to as "Member Services", are available only to Members. Member Services currently include but are not limited to access to the GradeBeam.com Web Site Directory and the ability to send and respond to invitation-to-bid messages through the GradeBeam.com system. Oracle may establish limits concerning use of any Member Services offered on the GradeBeam Web Site, including without limitation the maximum number of days that messages and/or documents can be stored, the maximum number of messages and/or documents that may be sent from or received by an account on any Member Services, the maximum size of messages and/or documents that may be sent from or received by an account on any Member Services, the maximum disk space that will be allotted on Oracle's servers on your behalf, and the maximum number of times and duration you may access any Member Services in a given period of time. You agree that Oracle has no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Member Services. You acknowledge that Oracle reserves the right to disable accounts that are inactive for an extended period of time. Oracle reserves the right to modify the Member Services at any time.


Other Terms:

You agree to comply with all applicable laws, statutes, ordinances and regulations concerning your use of the GradeBeam.com Web Site.

You agree that Oracle, in its sole discretion, may terminate your use of the GradeBeam.com Web Site immediately and without notice at any time for any reason or no reason, including if Oracle believes that you have acted inconsistently with the spirit or letter of this Agreement.

This Agreement is governed by the substantive and procedural laws of the State of California and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed under it.

The failure of Oracle to exercise or enforce any right or provision under this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court shall endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the these terms and conditions remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the GradeBeam.com Web Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.

For security purposes, Oracle does not and will never send automated E-Mails with any file attachments. Additionally, the users of the GradeBeam.com Web Site cannot send any E-Mails with any file attachments from the Oracle servers. Oracle recommends that users take action to protect their computer by making sure they have anti-virus software installed and updated on their system. Oracle also recommends that users do not open any E-Mail file attachments that they are not expecting to receive. Furthermore, it is a good practice to contact the sender of an E-Mail before opening any file that may be considered a questionable attachment.