Terms and Conditions
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will provide Customer and Customer’s authorized users the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.3 Subject to the terms hereof, Company will provide Customer with minor updates to CAD data. Major modification will be handled in accordance with the terms set forth in Exhibit D.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes; or knowingly and intentionally remove any proprietary notices or labels.
2.2 With respect to any Software that is distributed or provided under this Agreement, Company hereby grants Customer and Customer’s authorized users a non- exclusive, non- transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.3 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation court costs and reasonable attorneys’ fees) in connection with any third-party claim to the extent such claim results directly from Customer’s breach of Section 2.1 of this Agreement. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment.
2.5 Customer shall be responsible for entering its Customer Data into the Service, and Customer shall be responsible for the maintenance of the Customer Data supplied by it. Company is not responsible for entering data for Customer or its authorized users. Customer will use reasonable efforts to prevent transmission of any Customer Data that contains viruses, Trojan horses, and comparable elements with the intent to harm the Service or Service website used by Company to provide the Service, and will also use reasonable efforts to prevent such transmission through Customer Data provided by third parties.
2.6 Should Customer learn of a third party not authorized by Customer having obtained knowledge of a password, or a user any unauthorized party having access to the Service, Customer shall inform Company thereof without any undue delay and promptly change the password or have Company deactivate the unauthorized user access.
2.7 Customer is responsible for the connection to the Service, including the internet connection and any hardware and browser software required to connect to the Service. A 'high speed' broadband internet connection with bi-directional speeds of 5Mbit/s or greater are recommended. Company is not responsible for any defaults or deficiencies under this Agreement to the extent that such defaults or deficiencies result from the Customer’s connection to the Service and are not in any way attributable to the Company.
2.8 Customer is responsible for providing any and all computer equipment necessary to transfer Customer Data to and from the Service, including but not limited to scanners, printers, and other hardware devices and supporting software. Company is not responsible for any defaults or deficiencies under this Agreement to the extent that such defaults or deficiencies result from the Customer’s hardware and software necessary to utilize the Service and are not in any way attributable to the Company.
3.CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the "Receiving Party") understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by or on behalf of Customer to Company to enable the provision of the Services, all data stored, recorded, processed, created, derived or generated by or as a result of use of the Service by or on behalf of Customer (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party who had a bona fide right to make such disclosure, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. In the event disclosure is required by law, the Receiving Party shall timely notify the Disclosing Party of such requirement.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Except to the extent related to Customer Data, Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Project Configuration Services or support, and (c) all intellectual property rights related to any of the foregoing, except as such rights may pertain to Customer Data.
3.3 Customer grants to Company the nonexclusive right to use Customer Data solely for the purpose of providing the Service to Customer and Customer’s authorized users. Customer grants to Company the right to use Aggregate Data pursuant to Section 3.4 herein. Nothing herein shall grant, or shall be construed to grant, Company any ownership right in any drawing or graphic on which any person or entity has claimed a copyright or other proprietary interest.
3.4 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information solely for the provision, use and performance of various aspects of the Services and related systems and concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to use such information and data solely to improve and enhance the Services and for other business, development, diagnostic and corrective purposes in connection with the Services. For purposes of this Agreement, “Aggregate Data” includes Customer Data, and can include data collected during the course of use of the Service, including inspection pass/fail rates, inspection life cycles, most common project delays, RFI life cycle rates, change order life cycle rates, performance by work type, issue life cycle rates, and other project process data and project performance data. No rights or licenses are granted except as expressly set forth herein. To the extent Aggregate Data is disclosed to third parties, Aggregate Data must be anonymized and not include any information that could be used to identify, or re-identify, Customer, Project Owner, or any other third party related to the Project.
4. PAYMENT OF FEES
4.1 Customer will pay Company the fees described in the Order Form for the Services and Project Configuration Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. If Customer believes that Company has billed Customer incorrectly, Customer will use reasonable efforts to contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, or, if later, the date on which Customer becomes aware of the error or problem, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company sixty (60) days after Customer receives the valid invoice. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
4.3 Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for alleged defects in the Service without the prior written consent of Company or otherwise detailed in Exhibit “A”.
4.4 Customer agrees that Customer purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
5. DATA SECURITY
Company will store and process Customer Data in accordance with commercial best practices, including taking and implementing all appropriate legal, organizational, and technical safeguards to secure Customer Data from unauthorized access, disclosure, alteration, and use. At all times, Company must comply with all applicable federal and state data protection and privacy laws and regulations.
6. TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form.
6.2 Customer may terminate this Agreement in whole or in part at any time by written notice to the Company and receive a pro-rata refund of any pre-paid Fees for the remainder of the Term after the effective date of the termination, if the Project Owner terminates Customer’s agreement with Project Owner. Company will provide this refund within 30 days of receipt of such notice of termination.
6.3 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
Company shall (i) comply with all applicable laws and regulations; (ii) provide the Services in accordance with prevailing industry standards and all standard documentation relating to the use and operation of the Services provided or made available to Customer; and (iii) perform the Project Configuration Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to avoid scheduling maintenance during business hours and must provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SER VICES AND PROJECT CONFIGURA TION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
8. INDEMNITY
Company must indemnify, defend, and hold harmless Customer and the Project Owner and each of Customer’s and Project Owner’s officers, directors, employees, independent contractors, agents, and representatives from and against any and all liabilities, damages, losses, fines, penalties, claims, costs, or expenses (including costs of investigation and reasonable legal and accounting fees) resulting from any claim or suit brought by any third party arising out of or relating to (i) any claim or allegation that the Service infringes any third-party intellectual property right; (ii) Company’s material breach of any term, representation, warranty, or obligation contained in this Agreement and/or any Order; or (iii) Company’s failure to comply with applicable law or regulation. Notwithstanding the foregoing, Company will not enter into any settlement requiring Customer to make any admission or involving any injunctive or other non-monetary relief, without Customer’s prior written consent, which will not be unreasonably withheld or delayed. Customer may join in the defense with its own counsel and at its own expense. The foregoing intellectual property indemnity obligation does not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials to the extent that the alleged infringement was directly caused by such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not in accordance with this Agreement the alleged .infringement was directly caused by such use. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, either party may terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid fees for the Service related to the portion of the Term impacted by the claim or allegation and provide reasonable support at Company’s cost to migrate Customer to another provider.
9. LIMITATION OF LIABILITY
IN NO EVENT, REGARDLESS OF LEGAL THEORY, WILL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
10. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable orinvalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except by Customer to Project Owner, this Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, which will not be unreasonably withheld or delayed. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing, signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
11. CCPA
The parties acknowledge and agree that Company is deemed to be and is acting as a “Service Provider” as defined by the California Consumer Privacy Act (“CCPA”), to Customer in connection with Company’s performance of the Services under this Agreement. Company acknowledges and confirms that it does not provide Customer with any monetary or other valuable consideration in exchange for personal data and certifies that it understands and will comply with the restrictions set forth herein. Except as required by applicable law, regulation, or professional standard, Company will not collect, access, use, disclose, process or retain personal data for any purpose other than the purposes of this Agreement. In particular, Company will not sell any personal data. Company will, to the extent possible, notify Customer if Company receives a request from a data subject seeking to exercise such person’s rights under any data protection laws, and will provide reasonable assistance to the Customer in assistance with the request.