Effective August 31, 2010
Thank you for subscribing to FM BENCHMARKING, which entitles you to access the FM BENCHMARKING database (the “Database”). Please review this document carefully, because it will become a contract between you (“you” or “Subscriber”) and FM BENCHMARKING, LLC (“FM BENCHMARKING,” or sometimes “we” or “us”).
By checking the “I agree” box at the bottom of this page, or by accessing the FM Benchmarking Database, you agree to all of the terms and conditions (the “Terms”) in this Agreement, as amended from time to time, and acknowledge that failure to comply with these Terms shall be grounds for terminating access to our Database.
In order to access the Database, you must enter data relating to a building into the Database, and pay the annual subscription fee for that building. You must complete and submit all of the required information on our sign-up form accurately and completely, and to notify us when your address, or any other information you have given us, changes. We reserve the right to reject any application, for any reason.
2. Building Accounts, Subscriber IDs, and Passwords
Upon activation of an account for a building, FM BENCHMARKING will provide you with a unique building code, subscriber ID and password, as Building Administrator for that building. To access the Database, a user must enter a valid building code, subscriber ID and password.
Upon activation of an account for a client responsible for more than one building, we will also create an account for one Group Administrator, who will possess the same privileges as each of the Building Administrators for that client. However, only one person at a time, whether Building Administrator or Group Administrator, may enter or modify data relating to a building.
Building Administrators or Group Administrators may also authorize non-administrator subscriber IDs and passwords associated with a valid building code. However, non-administrators may not enter or modify data relating to any building, and may only access the Database to view data or generate reports.
You are responsible for maintaining the confidentiality and security of your building codes, subscriber IDs, and passwords. You agree to be solely responsible for ensuring that any access to our Database using your building codes or subscriber IDs complies with these Terms. You agree to notify us immediately about any unauthorized use of accounts or any breach of security.
Subscriber IDs may be not assigned or otherwise transferred, directly or indirectly, to any person or entity without FM BENCHMARKING’s prior written consent.
3. Access to the Database
As a subscriber, you will have a limited license to access the FM BENCHMARKING Database, and to generate reports from our Database, in accordance with these Terms and with rules and instructions set forth on our website. By subscribing, you agree to comply with these Terms and all such rules and instructions, including all amendments we may make from time to time.
We will attempt to make the Database available 24 hours per day, 7 days per week, excepting periods of scheduled maintenance. However, FM BENCHMARKING does not warrant that access to the Database will be available, will be uninterrupted or will be error-free, and we may discontinue or suspend operation of the Database, or modify its contents, at any time for any reason, in our sole discretion, with or without notice. We will attempt to post notices of changes on our website, but cannot guarantee that we will always be able to do so.
You are responsible for any Internet access charges or other telecommunications charges for accessing our Database.
4. Changes to Terms or Access Rules
FM BENCHMARKING reserves the right to change these Terms, or the Access Rules, or to add or delete Terms or Access Rules, at any time, with or without notice, at our discretion, by posting them on our website. We may notify you by E-mail or by notices on our home page of any changes, but changes to the Terms or Access Rules will become effective upon posting. We encourage subscribers to periodically review this page, or the Access Rules, to note changes.
Subscription fees entitle subscribers to use one valid building code for one year from date of payment. Subscription fees are nonrefundable, except as provided through the site”s refund and cancellation policy stated on the Pricing Page. Until payment is received, rates are subject to change without notice.
6. Ownership and Confidentiality
Unless otherwise noted, all materials on our website, including images, illustrations, designs, icons, photographs, audio, video clips, and written and other materials that are part of the website, the data contained within the Database, and the Database itself (collectively called the “FM Benchmarking Content” are copyrights, trademarks, service marks, trade dress and/or other intellectual properties owned, controlled or licensed by FM BENCHMARKING.
No FM Benchmarking Content may be copied, reproduced, framed, hyperlinked, republished, uploaded, posted, transmitted or retransmitted, or distributed in any way, except to the extent permitted under this Agreement. The FM Benchmarking Content is the sole property of FM BENCHMARKING. Subscriber acquires no right, title or interest in any FM Benchmarking Content, except to extent licensed under this Agreement.
Subscriber acknowledges that the Database is a trade secret of FM BENCHMARKING, because it derives independent economic value from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and because it is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
By contributing data relating to a building to FM BENCHMARKING”s Database, Subscriber grants FM BENCHMARKING an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferrable license to use such data as part of the Database, and for such other related purposes as FM BENCHMARKING may determine.
7. Removing Copyright Notices Prohibited
Subscriber may not remove, alter or modify copyright notices of FM BENCHMARKING or of any third party from reports generated from the Database. Subscriber acknowledges that failure to comply with this restriction shall be grounds for terminating access to the Database.
8. Disclaimer of Warranties
FM BENCHMARKING provides the Database on an “AS IS” basis without guarantee. FM Benchmarking does not warrant or guarantee the accuracy, completeness, adequacy or currency of any information contained in or extracted from the Database; nor that the Database will include information or data meeting Subscriber”s requirements, or those of its customers or clients; nor that its operation will be error-free or without interruption.
EXCEPT AS MAY BE SET FORTH IN THIS AGREEMENT, FM BENCHMARKING EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFORMATIONAL CONTENT.
9. Restrictions on Commercial Use
Internal uses. Subscriber may use the Database, and reports generated from the Database, internally for Subscriber’s own business. If posted to a location accessible over a network within a company or other organization, access must be restricted from general public access by means of a password or similar control system; copyright notices must not be removed, altered or modified; and in addition, the report must state that “Disclosure of this information outside [name of the subscribing organization] is strictly prohibited, unless permitted by FM BENCHMARKING, LLC,” and indicate that questions about disclosure should be directed to the responsible administrator, who is identified by name, telephone number and/or E-mail address.
External uses. Subscriber may use the Database, and reports generated from the Database, for Subscriber’s clients or customers, provided that any report furnished to a client must show the name of a building for which Subscriber is the administrator, and that Subscriber’s client agrees to maintain the confidentiality of any data obtained from the Database within its organization, and not to remove, alter or modify copyright notices of FM BENCHMARKING or of any third party, in accordance with the terms of this Agreement.
Promotional uses. Subscriber may reproduce reports, in the form of graphic presentations only, generated in reports from the Database, for promotional or marketing purposes, provided that any such graphic or information (i) is directed to contrasting one or more of Subscriber’s buildings to a metric derived from the Database, (ii) shall display or disclose only mean, median, total or aggregate data, and shall not display or disclose data attributable to any identifiable building, (iii) address no more than five metrics in total, and (iv) shall display the copyright notices of, or attribute the information to, FM BENCHMARKING. Subscriber acknowledges that failure to comply with this restriction shall be grounds for terminating access to the Database, and may subject Subscriber to claims for damages or other legal remedies. Any exceptions desired by Subscriber to these restrictions on commercial use must be approved in writing by FM BENCHMARKING. Please send any requests by e-mail with examples of any reports desired to firstname.lastname@example.org.
Posting any of the FM Benchmarking Content on any other website, or displaying any report generated from the Database on any Internet website (other than as may be permitted by these Terms), is prohibited, and may subject Subscriber to claims for damages or other legal remedies.
10. Other Uses Prohibited
Any use of the Database not expressly authorized in this Agreement is strictly prohibited without FM BENCHMARKING”s prior written consent, which consent may be withheld in our sole discretion. Without limiting the generality of the foregoing, Licensee is expressly prohibited from (a) sublicensing or reselling the Database, in whole or in part; (b) using or allowing any third parties to use the Database directly for any purpose, including but not limited to compiling, enhancing, verifying, supplementing, adding to any other compilation of information, or reselling access to it or information from it; (c) using the Database in any service or product not specifically authorized in this Agreement or offering it through any third party; (d) disassembling, decompiling, reverse engineering, modifying or otherwise altering the Database or any part thereof, or any software used in the Database; or (e) using information extracted from the Database to compile any similar database.
11. Limitation of Liability
Subscribers use information from the database at their own risk. Under no circumstances, including but not limited to negligence, shall FM BENCHMARKING or its employees, agents, suppliers or contractors be liable for any losses and expenses of whatever nature and howsoever arising, including without limitation any loss of or damage to property, loss of income or profit, failure to achieve reductions in costs, loss of goodwill, loss of use, loss of data, loss caused by any computer virus or worm, or any indirect, special, consequential, incidental or punitive damages. These exclusions on damages shall be independent of any failure of the limited remedy stated in this section.
Fm benchmarking shall not be responsible for any decision made by you or action taken by you in reliance upon any content, nor for any claims by third parties, nor for any other losses of any kind or character, that result from the use of, or the inability to use, the database, even if FM BENCHMARKING or an authorized representative has been advised of the possibility of such damages.
In no event shall our total liability to you for all damages, losses, and causes of action, whether in contract, tort (including but not limited to negligence), or otherwise, exceed the amount paid by you, if any, to FM BENCHMARKING for accessing the database.
These Terms, and your account with FM BENCHMARKING, are effective until terminated by either party.
You may terminate your account at any time by sending an e-mail to us at email@example.com.
FM BENCHMARKING may terminate or temporarily suspend your access to the Database, immediately and without notice, for conduct that it determines, in its sole discretion, to violate these Terms or the Access Rules, or is harmful to FM BENCHMARKING or to other subscribers.
Upon termination, you may no longer access the Database. In addition, we may take such further action as we determine to be appropriate under the circumstances to eliminate or preclude repeat violations, and we shall not be liable for any damages of any nature suffered by any subscriber or by any third party resulting in whole or in part from our exercise of our rights under these Terms.
If your account is cancelled, you agree not to sign up with FM BENCHMARKING again, under the same or different names or e-mail addresses, unless you receive express written permission from FM BENCHMARKING.
You agree to indemnify and hold FM BENCHMARKING and its respective directors, officers, employees, and agents harmless from any and all liabilities, claims, damages, settlements and expenses, including reasonable attorneys” fees, arising from breach of these Terms, of the Access Rules, or from any act or omission relating to use of or access to the Database by you. FM BENCHMARKING will promptly give you notice of any claim, or of the commencement of any legal proceedings, for which we recovery under this indemnity may be sought; but if we fail to give timely notice, that will not affect our right to indemnification, except to the extent that you are actually damaged or prejudiced by our delay.
15. Governing Law; Remedies
These Terms shall be governed by and construed in accordance with the laws of the State of Maryland, United States of America.
You agree that except as is provided in the next paragraph, any action at law or in equity arising out of or relating to these Terms or to the use of the Database shall exclusively be resolved by arbitration in Montgomery County, Maryland, USA, under the rules of an independent arbitration services provider to be designated by FM BENCHMARKING, before a single arbitrator possessing expertise in computer database or software licensing contracts. The arbitrator shall have the discretion to award FM BENCHMARKING, if the substantially prevailing party, recovery of its expenses of arbitration, including reasonable attorneys’ fees, from any substantially non-prevailing party. The arbitration award shall be final and binding upon the parties, and judgment upon the award may be entered in any court having jurisdiction.
Subscriber acknowledges that any unauthorized use of the Database will cause irreparable harm and injury to FM BENCHMARKING for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Subscriber further agrees that in the event Subscriber uses the Database in violation of this Agreement, FM BENCHMARKING shall be entitled to appropriate equitable relief, without necessity of posting bond, from a court of competent jurisdiction in the State of Maryland, the courts of which shall have exclusive jurisdiction over such actions and to the jurisdiction of which the parties irrevocably submit. In any such proceeding, FM BENCHMARKING, if the substantially prevailing party, shall be entitled to recover its expenses, including its reasonable attorneys’ fees, from any substantially non-prevailing party.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. You agree that regardless of any law or statute to the contrary, any claim or cause of action arising out of or relating to use of the Database and/or these Terms must be filed within one (1) year of the date the claim or cause of action arose, or be barred as untimely. The failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. This is the entire agreement between us relating to its subject matter and shall not be modified except as provided in these Terms or in a writing signed by an authorized representative of FM BENCHMARKING.