MB ProBuild

Software Subscription Agreement

IMPORTANT — READ CAREFULLY

Memorial Systems, LLC MB ProBuild Software Subscription Services Agreement

Last Updated: February 10, 2026

This Agreement is between Memorial Systems, LLC, a limited liability company organized under the laws of the State of Ohio with offices at 301 North Hague Avenue, Columbus, OH 43204 ("Memorial Systems") and you, the customer ("Customer"). This Agreement sets forth the conditions by which Memorial Systems will make its proprietary MB ProBuild software available to you via the MB ProBuild platform. This Agreement incorporates by reference the Memorial Systems Privacy Policy, available here. Should you have any questions about this Agreement, you should contact Memorial Systems.

1. Definitions.

(a) Authorized User means an employee or agent of Customer permitted to access the Platform and use the Software and Documentation during the term of this Agreement for Customer's internal business purposes relating to Customer's business operations, has been issued login credentials, and has agreed to the terms and conditions of this Agreement.

(b) Customer Data means Customer's accounting, business, marketing, sales, and other data provided or submitted by Customer to the Platform or generated in connection with accessing and using the Platform and related Software.

(c) Documentation means all operator and user manuals, including online information and materials, relating to the use of the Platform and Software provided or accessible to Customer in connection with this Agreement.

(d) Memorial Systems Confidential Information means all business or technical information of Memorial Systems that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed orally or in writing. Confidential Information includes the Software accessible at the Platform and any Documentation, compilations of information, methods, techniques, procedures, processes, databases, written descriptions, reports, designs, and plans, however recorded or embodied and may include trade secrets of Memorial Systems. Confidential Information also includes proprietary information that Memorial Systems may disclose to Customer when providing services to Customer pursuant to this Agreement. Memorial Systems Confidential Information shall not include information which is or becomes public knowledge through no fault of Customer or as Customer can demonstrate in writing was known prior to the disclosure thereof or as is obtained by Customer from a third party having an unrestricted and a legal right to disclose to others.

(e) Platform means the MB ProBuild web-based platform, including the mbprobuild.com website and any associated applications, APIs, or interfaces, for accessing and using the Software.

(f) End Customer means a third-party individual, including a customer or client of Customer, who is granted limited access to the Platform by Customer solely for the purpose of viewing account information, design information, or other data pertaining to that individual's account with Customer, and who has no direct contractual relationship with Memorial Systems.

(g) Software means the MB ProBuild software accessible at the Platform.

2. Access to and Use of the Platform, Software, and Documentation.

Customer's Authorized Users shall be permitted to access and to use the Platform, Software, and Documentation during the term of this Agreement for Customer's own lawful internal business purposes relating to Customer's business operations.

3. Restrictions on Use of Platform, Software, and Documentation.

Customer's access to and use of the Platform, Software, and Documentation is subject to the following restrictions:

(a) Customer may not use the Platform, Software, or Documentation, or authorize or permit any other person or agent to use the Platform, Software, or Documentation, for any purpose other than those expressly authorized under Section 2.

(b) Customer may not sublicense, transfer, or otherwise assign its rights to access and use the Platform, Software, or Documentation to any third party nor allow any third party to access or use the Platform, Software, or Documentation, except as expressly provided in this section. If Customer sells all or substantially all of the assets relating to Customer's business operations, Customer may assign Customer's rights under this Agreement to continue using the Platform, Software, and Documentation so long as (1) Customer obtains Memorial Systems's prior written consent to the assignment, which shall not be unreasonably withheld; and (2) the acquirer of Customer's assets agrees in writing to be bound by the terms and conditions of this Agreement.

(c) Customer may not attempt to duplicate, decompile, disassemble, or reverse engineer the Software for any reason or to access or use the Platform, Software, or Documentation to build or support, and/or assist a third party in building or supporting, a competitive platform, product, and/or software.

(d) Customer shall permit only Authorized Users to access and use the Platform, Software, and Documentation pursuant to this Agreement. Authorized Users shall not share their login credentials with anyone.

(e) Customer may not use the Platform, Software, or Documentation in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party's use of the Platform.

(f) Customer may not use any automated means, including bots, scrapers, or similar technologies, to access or interact with the Platform, except through APIs expressly provided and authorized by Memorial Systems.

4. Ownership of Platform, Software, and Documentation.

Memorial Systems retains all right, title, and interest in and to the Platform, Software, and Documentation in all forms and all copies and modifications of the Platform, Software, and Documentation, including all worldwide rights to patents, copyrights, trademarks, and trade secrets in or relating to the Platform, Software, or related Documentation. Customer is not acquiring any right, title, or interest, of any nature whatsoever, in any Software or Documentation except the right to access and use the Platform, Software, and Documentation as granted under Section 2.

Customer shall not remove, alter, or obscure any proprietary notices, labels, or marks on or in the Software or Documentation.

5. Customer Responsibilities.

Customer shall be responsible for:

(a) obtaining any software, hardware, or internet connectivity required for access to and use of the Platform, Software, and Documentation including any operating system software or third-party application software;

(b) configuring network settings or connections to permit communication with the Platform and Software;

(c) issuing login credentials to Authorized Users of the Platform;

(d) using reasonable efforts to protect login credentials and to prevent unauthorized access to or use of the Platform, Software, and Documentation, including implementing multi-factor authentication where available;

(e) notifying Memorial Systems promptly if Customer becomes aware of unauthorized access to or use of the Platform, Software, or Documentation; and

(f) ensuring that Customer's use of the Platform complies with all applicable laws and regulations, including but not limited to data protection and privacy laws; and

(g) where Customer enables End Customer access to the Platform, prior to granting such access, Customer shall:

  1. inform each End Customer that the Platform is operated by Memorial Systems, LLC, a third-party service provider, on Customer's behalf;
  2. disclose to each End Customer that Memorial Systems may collect certain technical data — including IP addresses, browser information, and session activity — in connection with their use of the Platform;
  3. obtain any consents and provide any notices required by applicable law with respect to such technical data collection; and
  4. ensure that Customer's own privacy policy or disclosures to End Customers adequately cover the use of third-party platforms and the collection of technical data as described above.

Customer is solely responsible for the adequacy, accuracy, and legal sufficiency of all disclosures made to End Customers and for compliance with all applicable laws governing End Customer access. Memorial Systems's collection of End Customer technical data is limited to data necessary for Platform security, performance, and analytics, and does not extend to personal information collected by Customer in connection with Customer's own business operations.

Customer is solely responsible for the content of any data and for data transmissions to and from the Platform. Customer is also solely responsible for the access to and use of the Platform, Software, and Documentation by Customer's employees or agents that Customer permits to access and use the Platform, Software, and Documentation. Customer represents and warrants that its users:

(a) will not use the Platform or Software in a manner that is prohibited by any law or regulation or to facilitate the violation of any law or regulation;

(b) will not violate or tamper with the security of the Platform or Software;

(c) will not upload, transmit, or store any content that is unlawful, harmful, threatening, abusive, defamatory, or otherwise objectionable; and

(d) will not introduce any viruses, malware, or other harmful code to the Platform.

6. Data Ownership.

Customer retains all right, title, and interest in and to Customer Data and other data entered and collected in conjunction with Customer's access to and use of the Platform and Software.

Customer grants to Memorial Systems a non-exclusive, non-transferable, non-sublicensable license to use, copy, store, modify, and display Customer Data solely to the extent necessary to provide Platform and Software subscription services to the Customer.

Memorial Systems may use aggregated, de-identified, or anonymized data derived from Customer Data for purposes of improving the Platform and Software, conducting analytics, and generating industry benchmarks, provided that such data cannot reasonably be used to identify Customer or any individual.

7. Data Protection and Security.

(a) Customer is responsible for the accuracy, quality, integrity, and reliability of Customer Data.

(b) Memorial Systems shall not knowingly use, edit, or disclose Customer Data except as necessary to provide the services contemplated by this Agreement or as required by law.

(c) Memorial Systems shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Such safeguards shall include, but not be limited to:

  • Encryption of Customer Data in transit and at rest;
  • Access controls and authentication measures;
  • Regular security assessments and vulnerability testing;
  • Employee security awareness training; and
  • Incident response procedures.

(d) Memorial Systems does not warrant or guarantee that Customer Data will not be subject to unauthorized access or disclosure and does not accept responsibility for any loss or damage arising from breaches, errors, omissions, or interruptions in data transmissions or data storage, except to the extent caused by Memorial Systems's failure to maintain the safeguards described in Section 7(c).

(e) Data Breach Notification. In the event Memorial Systems becomes aware of any unauthorized access to, acquisition of, or disclosure of Customer Data (a "Data Breach"), Memorial Systems shall notify Customer without unreasonable delay and in no event later than seventy-two (72) hours after becoming aware of the Data Breach. Such notification shall include, to the extent known: (1) a description of the nature of the Data Breach; (2) the categories and approximate number of records affected; (3) the likely consequences of the Data Breach; and (4) the measures taken or proposed to address the Data Breach.

(f) Data Processing. To the extent that Memorial Systems processes personal data on behalf of Customer, Memorial Systems shall process such data only in accordance with Customer's documented instructions and applicable data protection laws. The parties shall enter into a Data Processing Addendum if required by applicable law.

8. Software Fees and Payments.

In consideration of the rights to access and use the Platform, Software, and Documentation, Customer agrees to pay subscription fee(s) to Memorial Systems. Memorial Systems and Customer shall agree in writing on the fee(s) and payment schedule prior to the start of Customer's access to the Platform, Software, and Documentation, and any first fee payment becoming due.

9. Warranties.

(a) Memorial Systems warrants that the Platform shall be operational and available for use by Customer ninety-nine percent (99%) of all contracted periods, and that during such time the Software will conform in all material respects to the Documentation for the current version of the Software.

(b) Memorial Systems warrants that it will provide the services contemplated by this Agreement in a professional and workmanlike manner consistent with generally accepted industry standards.

(c) Memorial Systems warrants that it has the authority to enter into this Agreement and to grant the rights set forth herein.

MEMORIAL SYSTEMS DOES NOT WARRANT OR REPRESENT THAT THE PLATFORM AND SOFTWARE WILL BE ERROR-FREE, THAT THE PLATFORM AND SOFTWARE SERVICES WILL OPERATE UNINTERRUPTED, OR THAT THE PLATFORM AND SOFTWARE WILL MEET CUSTOMER'S SPECIFIC NEEDS. MEMORIAL SYSTEMS MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

THE WARRANTIES SPECIFIED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. MEMORIAL SYSTEMS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY OF NON-INFRINGEMENT. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH ACCESSING THE PLATFORM AND WITH USING THE SOFTWARE.

10. Exclusive Remedies for Breach of Warranty.

If any of the warranties specified in Section 9 with respect to the Software are breached, the following terms shall apply:

(a) Customer shall promptly notify Memorial Systems of the breach and any associated details reasonably requested by Memorial Systems. For a Platform or Software non-conformance breach, Customer shall cooperate with Memorial Systems in re-creating the conditions that existed at the time the Platform or Software failed and shall provide a set of input capable of repeating the alleged error and a description of the occurrence and operating conditions under which it appeared, if reasonably requested by Memorial Systems.

(b) Memorial Systems shall diligently and in good faith attempt to correct the reported breach. For a Platform or Software non-conformance breach, Memorial Systems shall correct the reported non-conformance by repairing or modifying the Platform and/or Software within a commercially reasonable period of time.

(c) In the event Memorial Systems is unable to correct any warranty breach, Customer's sole remedy shall be payment of liquidated damages not to exceed the amount of one-half of the Subscription Fees paid by Customer during the preceding twelve (12) months.

(d) Memorial Systems's obligations in this section are limited to identifiable and reproducible errors.

THE FOREGOING REMEDIES ARE EXCLUSIVE AND WILL BE CUSTOMER'S SOLE REMEDIES WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO ANY BREACH OF WARRANTY OR OTHER FAILURE OF THE PLATFORM OR SOFTWARE TO OPERATE AS INTENDED, WHETHER BASED IN CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE.

11. Limitation of Liability.

EXCLUSIVE OF THE LIQUIDATED DAMAGES PROVISION OF SECTION 10, THE LIABILITY OF MEMORIAL SYSTEMS WITH RESPECT TO THIS AGREEMENT INCLUDING ANY AND ALL CLAIMS WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER FOR THE SOFTWARE AND DOCUMENTATION DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MEMORIAL SYSTEMS SHALL IN NO EVENT BE RESPONSIBLE FOR LOSSES OR DAMAGES OF ANY KIND RESULTING FROM ACCESS TO OR USE OF THE PLATFORM, SOFTWARE, AND DOCUMENTATION, INABILITY TO ACCESS OR USE THE PLATFORM, SOFTWARE, OR DOCUMENTATION, WORK STOPPAGE, LOSS, DISCLOSURE, OR BREACH OF CUSTOMER DATA, OR ANY DEFICIENCIES, DEFECTS, ERRORS, OR MALFUNCTIONS IN THE PLATFORM, SOFTWARE, OR DOCUMENTATION, EXCEPT TO THE EXTENT CAUSED BY MEMORIAL SYSTEMS'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE OF SOFTWARE, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12. Indemnification.

(a) By Memorial Systems. Memorial Systems shall indemnify, defend, and hold harmless Customer from and against any third-party claims, damages, losses, and expenses (including reasonable attorneys' fees) arising from Memorial Systems's breach of this Agreement or any claim that the Software infringes a third party's intellectual property rights, provided that Customer gives Memorial Systems prompt written notice of the claim and cooperates with Memorial Systems in the defense of the claim.

(b) By Customer. Customer shall indemnify, defend, and hold harmless Memorial Systems from and against any third-party claims, damages, losses, and expenses (including reasonable attorneys' fees) arising from: (1) Customer's use of the Platform or Software in violation of this Agreement; (2) Customer Data or any content uploaded by Customer to the Platform; (3) Customer's violation of any applicable law or regulation; or (4) any claim by an End Customer arising from Customer's failure to provide required disclosures, obtain required consents, or otherwise comply with Customer's obligations under Section 5(g) with respect to End Customer access.

13. Confidentiality.

Customer acknowledges that it may receive Memorial Systems Confidential Information during the term of this Agreement. Customer shall hold in strictest confidence and shall not use or disclose to any person or entity other than Customer's employees and authorized agents any Memorial Systems Confidential Information previously or hereafter disclosed to Customer by Memorial Systems. Customer shall take precautions as necessary to safeguard Memorial Systems Confidential Information, including, but not limited to (a) those taken by Customer to protect Customer's own confidential information; and (b) those which Memorial Systems may reasonably request from time to time. Customer shall notify Memorial Systems in writing if it becomes aware of any violation of this section.

Memorial Systems acknowledges that Customer Data constitutes confidential information of Customer. Memorial Systems shall hold Customer Data in confidence and shall not use or disclose Customer Data except as expressly permitted by this Agreement or as required by law.

14. Term and Termination.

Customer's right to access and use the Platform, Software, and Documentation shall be effective until terminated in accordance with this section.

(a) 90-Day Performance Guarantee. If at any time during the first 90 days of using the Software, Customer is dissatisfied with the quality or performance of the Software and desires to cease use of the Software, the Agreement shall be terminated and Memorial Systems shall repay Customer for any fees paid by Customer. Customer shall only be entitled to a single 90-day performance guarantee.

Invoicing and Payment. Unless otherwise agreed, Memorial Systems shall invoice Customer for fee payment(s). Memorial Systems shall have the right to change future subscription pricing and payment schedules by providing written notice of such pricing to Customer at least thirty (30) days in advance of the end of any current term. All payments made under this Agreement shall be in U.S. dollars.

(b) Automatic Renewal. Absent termination under this Agreement, licensing terms shall automatically renew at the end of each term.

(c) Termination by Customer. Customer may terminate the license upon thirty (30) days prior written notice to Memorial Systems. Termination shall not relieve Customer from its obligation to pay any and all fees owed by Customer under this Agreement.

(d) Termination by Customer in Event of Memorial Systems's Bankruptcy. Customer may terminate this Agreement immediately if Memorial Systems files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

(e) Termination by Memorial Systems. Memorial Systems may terminate the license upon written notice to Customer if Customer breaches in any material respect any term or condition of this Agreement and fails to cure the breach:

  1. in the case of a breach of a payment obligation, within ten (10) days after receipt of written notice of the breach from Memorial Systems;
  2. in the case of any other breach under this Agreement, within thirty (30) days after receipt of written notice of the breach from Memorial Systems.

(f) Termination by Memorial Systems in Event of Customer's Bankruptcy. Memorial Systems may terminate this Agreement immediately if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

(g) Effect of Termination. Upon termination of this Agreement for any reason:

  1. Customer's right to access and use the Platform, Software, and Documentation shall immediately cease;
  2. Customer shall pay all outstanding fees owed under this Agreement;
  3. Memorial Systems shall make Customer Data available for export by Customer for a period of thirty (30) days following termination, after which Memorial Systems may delete Customer Data in accordance with its data retention policies; and
  4. Each party shall return or destroy all Confidential Information of the other party in its possession.

15. Force Majeure.

Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement (other than payment obligations) to the extent such failure or delay results from causes beyond the reasonable control of such party, including but not limited to acts of God, natural disasters, pandemic, epidemic, war, terrorism, civil unrest, labor disputes, government actions, power failures, internet or telecommunications failures, cyberattacks, or denial-of-service attacks. The affected party shall give prompt written notice to the other party of such force majeure event and shall use commercially reasonable efforts to mitigate the effects thereof.

16. Dispute Resolution.

(a) Informal Resolution. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through informal negotiation. A party asserting a dispute shall provide written notice to the other party describing the nature of the dispute. The parties shall have thirty (30) days from the date of such notice to resolve the dispute informally.

(b) Mediation. If the dispute cannot be resolved through informal negotiation, the parties shall submit the dispute to mediation administered by a mutually agreed-upon mediator before initiating any legal proceedings.

(c) Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of Ohio without regard to its conflict of laws provisions. Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Franklin County, Ohio, and each party consents to the jurisdiction and venue of such courts.

17. General Provisions.

(a) Entire Agreement. This Agreement (including amendments as they may from time to time be mutually agreed upon, executed, and incorporated herein) contains the full and complete understanding of the parties with respect to the subject matter hereof, and no waiver, alteration, or modification of any of the provisions hereof shall be binding unless in writing and signed by the parties to this Agreement. Neither the course of conduct between the parties nor trade usage shall act to modify or alter the provisions of this Agreement.

(b) Binding Effect. This Agreement is binding upon and inures to the benefit of the parties thereto, their legal representatives, agents, successors, and assigns.

(c) Waiver. If either party should waive or choose not to enforce any provision of this Agreement at one time, such waiver shall not bar subsequent enforcement of such provision at a later time.

(d) Enforceability. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then both Memorial Systems and Customer shall be relieved of all obligations arising under such provision. If the remainder of this Agreement is capable of performance, it shall not be affected by such declaration or finding and shall be fully performed.

(e) Survival. The provisions of Sections 4, 6, 7, 9, 10, 11, 12, 13, 15, and 16 of this Agreement, together with any provisions of Section 17 that are necessary for their interpretation, shall survive and continue in full force and effect notwithstanding the termination or expiration of this Agreement.

(f) Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.

(g) Notices. Notices hereunder shall be delivered and be effective as follows: (i) written notice may be delivered in person or may be sent by courier, express mail, commercial equivalent, postage prepaid first class mail, or email with confirmed receipt, addressed to the party as shown below; and (ii) written notice shall be effective on the date received.

To Memorial Systems:
Memorial Systems, LLC
301 North Hague Avenue
Columbus, OH 43204
Email: legal@mbprobuild.com
Attn.: Jonathan Modlich

(h) Amendments. Memorial Systems may update this Agreement from time to time. Material changes will be communicated to Customer at least thirty (30) days in advance of taking effect. Continued use of the Platform after such changes take effect constitutes acceptance of the updated terms. If Customer does not agree to the updated terms, Customer may terminate this Agreement in accordance with Section 14(c).