Terms & Conditions
THESE TRACK3D TERMS AND CONDITIONS (AS UPDATED FROM TIME TO TIME BY TRACK3D (EXCEPT FOR SECTION 12.2, WHICH CAN ONLY BE UPDATED BY MUTUAL WRITTEN AGREEMENT), THE “TERMS”) SET FORTH THE TERMS AND CONDITIONS THAT ARE APPLICABLE TO THE ACCESS TO, AND USE OF, THE TRACK3D SOLUTION AND ANY SERVICES OFFERED BY CONSTRUCTN CORP. (“TRACK3D”) IN CONNECTION THEREWITH. BY ENTERING INTO ONE OR MORE ORDER FORMS WITH TRACK3D, THE CUSTOMER IDENTIFIED IN THE APPLICABLE ORDER FORM (“CUSTOMER”) AGREES TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”). IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED HEREIN HAVE THE MEANINGS SET FORTH IN SECTION 13.
IMPORTANT NOTICE – This Agreement requires the use of arbitration on an individual basis to resolve disputes between Customer and Track3D, rather than jury trials or class actions. Please read Section 12.2 for further details.
In the event that the individual accessing the Track3D Solution and/or Support Services is accessing the Track3D Solution and/or Support Services on behalf of a legal entity, such legal entity shall be the Customer hereunder, and, where Customer is not a natural person, the natural person accessing the Track3D Solution and/or Support Services on behalf of Customer hereby represents and warrants in his or her individual capacity that he or she has the authority to bind such legal entity in contract to this Agreement as Customer.
1. Order Forms
Track3D and Customer may enter into one or more Order Forms upon mutual agreement. Track3D shall not have any obligation to provide the Track3D Solution or any Support Services to Customer until such time that an authorized representative of each Party has executed an Order Form setting forth the terms and conditions that may be applicable to Customer’s use of the Track3D Solution. Each Order Form shall be limited solely to the Project mentioned therein, and the Parties shall enter into additional Order Form(s) in relation to other projects, at any time during the Term by mutual agreement. All Order Forms are subject to the terms of this Agreement.
2. Support and Service Levels
Track3D will provide support and uptime for the Track3D Solution in accordance with Track3D’s then-current standard Support and Availability Policy set forth at https://track3d.ai/support-and-availability-policy/. Notwithstanding the foregoing, Customer is responsible for whitelisting of all applicable Track3D domains or endpoints used by the Track3D Solution. Notwithstanding anything to the contrary in the Agreement, Track3D shall have no responsibility or liability (including under the foregoing Support and Availability Policy) the to the extent arising out of Customer’s failure to complete any onboarding, integration, and/or setup activity, including any failure to whitelist any applicable Track3D domains or endpoints used by the Track3D Solution.
3. Platform Updates
Track3D shall have the right, but not the obligation, to implement updates to the Track3D Solution (“Updates”) in Track3D’s sole discretion, which Updates may include the installation of security patches, upgrades and service packs with respect to the Track3D Solution. Track3D shall have the right, but not the obligation, to roll back any such Updates. Updates may change the functionality of the Track3D Solution and in some cases may negatively affect Customer’s use of the Track3D Solution. Track3D hereby disclaims all responsibility and/or liability for (a) disruptions to the Track3D Solution or changes in functionality or performance of the Track3D Solution resulting from Updates; and (b) any issues that may result from incompatibilities between Customer’s systems or software and any Update or hardware or software change or configuration, whether or not requested by Customer. Track3D will use commercially reasonable efforts to provide Customer with advance notice regarding any Updates or other changes that may materially impact Customer’s use of the Track3D Solution or the way in which Customer connects to the Track3D Solution.
4. Access Rights; Intellectual Property Rights; Customer Data
4.1 Right to Use the Track3D Solution. Subject to the terms and conditions set forth herein, including, without limitation, the Parties entering into an applicable Order Form and Customer’s payment of applicable fees, Track3D hereby agrees to provide the Track3D Solution and make it available to Customer and Authorized Users via the Internet or other data transmission system, and in connection therewith, Track3D hereby grants to Customer solely during the Term, a non-exclusive, non-transferable, non-sublicensable, limited right to (a) access and use the Track3D Solution and allow Authorized Users to access and use the Track3D Solution in accordance with the terms specified in an applicable Order Form; (b) transmit and receive Customer Data using the Track3D Solution; and (c) use the Documentation in connection with the foregoing rights.
4.2 Access to the Track3D Solution. Subject to the Parties entering into an applicable Order Form and Customer’s payment of applicable fees, Track3D will provide Customer with the Access Protocols. Customer is solely responsible for maintaining the confidentiality of the Access Protocols and the accounts and passwords that Customer creates with respect to use of the Track3D Solution by Customer and its Authorized Users, and will be responsible for any activities undertaken by anyone using Customer’s accounts and passwords (including by any Authorized User), except to the extent caused by the acts or omissions of Track3D. Each Authorized User shall be under the control of Customer and Customer shall be liable for any acts or omissions of each Authorized User as if such acts or omissions had been those of Customer under this Agreement.
4.3 Retention of Rights. As between the Parties, Track3D retains all right, title, and interest in and to the Track3D Solution and all software and products from the Track3D Solution, and any other works created or provided by Track3D, and all Intellectual Property Rights in or to any of the foregoing or arising therefrom or related thereto. Track3D reserves any and all rights not expressly granted to Customer pursuant to this Agreement. The rights granted to Customer to access and use the Track3D Solution comprise a limited right to use and do not constitute the sale of any software program or Intellectual Property Rights to Customer.
4.4 Restrictions on Use. Customer shall not, and Customer will cause Customer’s representatives and its Authorized Users to not: (a) access or use any portion of the Track3D Solution except as expressly authorized hereunder; (b) cause or permit decompilation, decipherment, disassembly, reverse assembly or reverse engineering of all or any portion of the Track3D Solution; (c) alter, change, modify, adapt, translate, or make derivative works based upon the Track3D Solution; (d) delete, fail to reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Track3D Solution or Documentation; (e) use the Track3D Solution in a manner that, or provide any direction to Track3D that, violates any applicable law; (f) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system or data; (iv) transfer, resell, license, sublicense or otherwise make the Track3D Solution (or any data or information accessible through the Track3D Solution) available to any third party, except as expressly described in this Agreement; (g) attempt to gain, or assist others with attempting to gain unauthorized access to Track3D’s network, systems or the Track3D Solution; (i) engage in any activity that violates the rights of others or that interferes with or disrupts the Track3D Solution; (j) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code; or (k) except as permitted hereunder with respect to Authorized Users, directly or indirectly, sublicense, relicense, distribute, disclose, use, rent or lease the Track3D Solution, or any portion thereof, for third party use, third party training, facilities management, outsourcing, rental, or time-sharing, or use as an application service provider or service bureau. Further, Customer shall: (i) ensure Customer’s Authorized Users and its representatives comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Track3D Solution, (iii) notify Track3D immediately of any such unauthorized access or use; (iv) comply with all applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations; (v) use the Track3D Solution in compliance with all applicable industry standards; (vi) use the Track3D Solution only for Customer’s own internal business purposes and solely in accordance with the terms of this Agreement; and (vii) use the Track3D Solution solely in accordance with Track3D’s instructions.
4.5 Historical Data. In the event that Customer submits any new request via the Track3D Solution including but not limited to (i) addition of new progress categories, and/or (ii) changes to tracking logic, classifications or schemas, and/or (iii) new metrics (each, a “New Request”), Track3D shall have no obligation to process Customer Data uploaded by or on behalf of the Customer in connection with prior requests (“Historic Data”) in connection with such New Request. Accordingly, any Customer Data processing in connection with any New Request shall only apply prospectively and only with respect to Customer Data uploaded subsequent to Customer’s submission of such New Request, from the point of configuration. Further, any unlimited data processing described in the applicable Order Form refers solely to processing of Customer Data captured and ingested during the Subscription Term subsequent to the submission of any New Request and does not include (a) reprocessing of previously processed data (including Historic Data), and/or (b) re-ingestion or reprocessing of the same data (including Historic Data) as a new data set. Any exception to the above shall require the prior written agreement between Track3D and the Customer in relation to additional fees and revised timelines.
4.6 Customer Data. As between the Parties, Customer owns all right, title and interest in the Customer Data (including, but not limited to, all Intellectual Property Rights relating thereto) as well as Customer Deliverables (see Section 4.8). Subject to the terms and conditions of this Agreement, Customer hereby grants Track3D a limited, worldwide, non-exclusive, royalty-free license during the Term to use, copy, store, modify, edit, create derivative works of, and transform Customer Data and Customer Deliverables for the purposes of: (a) providing the Track3D Solution and any Support Services or consulting services to Customer; and (b) generating Derived Data, provided such Derived Data does not identify or allow the identification of Customer. Track3D shall own all Derived Data and shall have the right to freely use, exploit and make available such Derived Data for Track3D’s business purposes (including without limitation, for purposes of improving, enhancing, testing, operating, the Track3D Solution and Track3D other products and services). However, any usage of Derived Data for training the Track3D Solution shall not be generative (namely, such training will not produce any new content, mimic proprietary information, or repurpose identifiable project data in any way). Track3D may also anonymize and aggregate Customer Data with data of its other customers for the sole purposes of (i) analyzing and improving Track3D’s services to all customers, as well as (ii) generating industry level insights and benchmarking reports; so long as Track3D does not disclose Customer Data in a manner that identifies or could be used to identify Customer. Customer represents, warrants, and covenants that: (x) it has (and will have) processed, collected, and disclosed all Customer Data in compliance with applicable Law and provided any notice and obtained all consents and rights required by applicable law to enable Track3D to lawfully process Customer Data as permitted by this Agreement; (y) it has (and will continue to have) full right and authority to make the Customer Data available to Track3D under this Agreement; and (z) Track3D’s processing of the Customer Data in accordance with this Agreement or Customer’s instructions does and will not infringe upon or violate any applicable law or any rights of any third party.
4.7 Data Protection Laws. Customer will be solely responsible for determining the extent to which Customer’s use of the Track3D Solution is subject to any privacy laws or regulations or the oversight of any regulatory agency charged with the enforcement thereof, and Customer shall only provide, transfer, share, maintain, and process Customer Data in connection with the Track3D Solution in accordance with such laws and regulations, and with respect to any Customer Data that is subject to such laws and regulations, in each case subject to Customer obtaining all necessary approvals, consents, and releases.
4.8 Retention of Customer Data and Customer Deliverables. Track3D shall have no obligation to store or otherwise maintain raw source data which has been captured by the Customer and uploaded/input onto the Track3D Solution, unless Track3D and the Customer have, by way of a prior written agreement, on such mutually agreed terms, agreed otherwise. For all Track3D Solution services (but subject to Section 14 below), Customer Data is hosted on US-based infrastructure access by Track3D personnel as needed. Customer Deliverables are limited solely to: (i) processed outputs as available from the Track3D Solution and derived from Customer Data; and (ii) one Final Project Report per project.
With respect to each applicable Customer project specified in the Track3D Solution, the Customer shall have access to the Track3D Solution with limited functionality for a period of one (1) year following the completion of such project (the “Additional Period”) at no additional cost, solely for the purpose of viewing Customer Data and Track3D Solution output. For the avoidance of doubt, the Additional Period runs from each such project’s completion date, not from expiration of the Subscription Term and such project completion may be determined by the project details maintained in the Track3D Solution, unless otherwise agreed in writing by the Parties. During this Additional Period, the Customer shall not be entitled to any new captures and/or processing by the Track3D Solution. The Customer may prior to the expiration of the Additional Period download the Final Project Report for each applicable project. In the event, the Customer has not downloaded such Final Project Report 30 days prior to the expiration of the Additional Period, the Customer shall be notified about the impending expiration of the Additional Period with a reminder to download such Final Project Report in accordance with this Section, along with a link for downloading of such Final Project Report. The Final Project Report for any project shall be downloadable only once. Upon the expiration of the Additional Period, all project data, including Customer Data and each Final Project Report (whether or not previously downloaded) may be permanently deleted from the Track3D Solution. Track3D shall not be responsible for maintaining/storing any such data, unless Track3D and the Customer have, by way of prior written agreement, on such mutually agreed terms, agreed otherwise. Any additional copy of the Final Project Report shall require a new Order Form and shall be chargeable in accordance with the prior written agreement between Track3D and the Customer in such new Order Form.
4.9 Customer Feedback. As part of the Customer’s use of the Track3D Solution and/or Support Services, the Customer may submit suggestions and other feedback, including bug reports, relating to the Track3D Solution and/or Support Services from time to time (“Feedback”). The Customer acknowledges that Track3D may, in its sole discretion, freely use, copy, disclose, publish, display, distribute, and exploit the Feedback it has received from the Customer, without any payment of royalty, acknowledgement, prior consent, or any other form of restriction arising out of the Customer’s intellectual property rights.
5. Communications
5.1 Toll-Free SMS Messaging
The Customer may contact Track3D via SMS through a designated toll-free number (+1-888-902-9544). By sending a message to this number, the Customer consents to receive SMS responses related to the Customer’s inquiries and/or service requests. Unless the Customer sends a message to Track3D on this number, Track3D shall not initiate SMS communication and shall not use SMS for advertising or promotional messaging. Notwithstanding the above, Track3D shall be entitled to send to the Customer an SMS indicating that such functionality is available.
All SMS responses are powered by Track3D’s AI algorithm, which generates automated replies for informational purposes only. Standard message and data rates may apply. The Customer may, at its sole discretion, opt out of receiving SMS messages by replying “STOP” or contacting [email protected]. Track3D complies with applicable messaging laws and carrier guidelines, including Twilio’s Toll-Free Messaging Policies and applicable U.S. telecommunications regulations.
5.2 Service Communications
The Customer acknowledges that Track3D shall be entitled to communicate with the Customer for non-marketing operational correspondence, which shall be undertaken by way of any mode permissible, including but not limited to emails, SMS etc. for the purposes of project updates, closure notices, billing communications, data expiry alerts and/or for any other purpose as stipulated under the Agreement. Unless otherwise required by applicable law, the Customer shall not be entitled and/or permitted to opt out of such service communications.
6. Confidentiality; Publicity
6.1 Protection of Confidential Information. The Party receiving Confidential Information under this Agreement (“Receiving Party”) agrees that it will not use or disclose to any third party any Confidential Information of the other Party (“Disclosing Party”), except as expressly permitted under this Agreement. The Receiving Party will limit access to the Disclosing Party’s Confidential Information to those employees, vendors, or contractors who have a need to know, and, in each case, who are subject to binding confidentiality obligations broad enough to encompass the Confidential Information that are no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. The Receiving Party will use the Disclosing Party’s Confidential Information solely to exercise its rights or perform its obligations under this Agreement. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. Customer Data is the Confidential Information of Customer. The Track3D Solution and the Documentation are Confidential Information of Track3D. Receiving Party may disclose Confidential Information in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable law, Receiving Party provides the Disclosing Party with prompt notice of the same and cooperates with the Disclosing Party in connection with any actions taken by the Disclosing Party to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.
6.2 Publicity. Customer hereby grants to Track3D a limited, non-exclusive right and license to use Customer’s name, logo, and trademarks for listing the Customer as a customer on Track3D’s website(s) subject to any trademark usage guidelines provided to Track3D by Customer in advance. For any other marketing or promotion, Track3D shall obtain prior written consent from the Customer.
7. Fees Payment
Customer shall pay Track3D the fees as set forth in the applicable Order Form(s) entered into by the Parties. If an Order Form does not specify the applicable payment terms, then Customer shall pay to Track3D all fees, charges and expenses upon receipt of invoice, which shall be issued upon Order Form Signing Date. All payments under this Agreement will be in U.S. dollars and made in accordance with the payment terms set forth in the applicable Order Form. Where set forth in the applicable Order Form, the Customer may request Track3D to use Customer’s internal procurement/invoice processing procedures, provided that such internal procurement/invoice processing procedures shall not modify the contractual payment due dates as set out herein or in the applicable Order Form. Without limiting the foregoing, additional or different terms in any written communication from Customer (such as a purchase order) are void. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
8. Term; Termination; Suspension
8.1 Term and Termination. The term of this Agreement (the “Term”) shall commence upon the Effective Date set forth in the first Order Form executed by the Parties, and, unless earlier terminated as provided herein, shall remain in effect until the expiration or termination of all outstanding Order Forms. In the event of a material breach of this Agreement or an applicable Order Form by either Party, the other Party may terminate this Agreement and all outstanding Order Forms by providing written notice (which may include email) to the applicable address or email address provided in the applicable Order Form, provided that, if the breach is capable of cure, the non-terminating Party does not cure such breach within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature are intended to survive termination of this Agreement shall survive termination, including, without limitation, Sections 4.3, 4.5, 4.7, 6, 7, 8.1, 9, 10, 11, 12, and 13.
8.2 Suspension. In addition to Track3D’s termination rights, in the event (a) Customer fails to timely pay any fees when due; or (b) Track3D believes, upon advice of counsel, that any element of the Track3D Solution, or Customer’s receipt or use thereof, violates any applicable law, rule or regulation, Track3D may in its sole discretion suspend access to the Track3D Solution and provision of the Support Services immediately without notice. Track3D shall restore access to the Track3D Solution and provision of the Support Services upon receipt of the applicable fees, or resolution of the other circumstances causing such suspension, as the case may be.
9. Indemnification
Each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party, its Affiliates and their respective employees, contractors, directors, officers, agents and representatives (each, an “Indemnified Party”) from and against all losses, damages, costs, liabilities, judgments and other expenses (including reasonable attorneys’ fees) (“Losses”), arising out of any third-party claim alleging that (a) with respect to Customer as the Indemnifying Party, the Customer Data, or (b) with respect to Track3D as the Indemnifying Party, the Track3D Solution, infringes, violates, or misappropriates any Intellectual Property Rights of any third party. Further, Customer shall defend, indemnify, and hold harmless Track3D from and against any and all Losses arising out of any third-party claim arising out of Customer’s breach of this Agreement. As a condition to the Indemnifying Party’s foregoing indemnification obligations, the Indemnified Party shall provide the Indemnifying Party with: (i) prompt written notice of an applicable claim; provided, that a failure to provide such notice shall not relieve the Indemnifying Party of its indemnity obligations unless the Indemnifying Party is materially prejudiced as a result of such failure; (ii) sole control over the defense and settlement of an applicable claim; provided, however, that the Indemnified Party may elect to participate in the defense and settlement of the applicable claim at its own expense; and (iii) reasonable information and assistance in connection with such defense and settlement, in each case at the Indemnifying Party’s sole cost and expense. Notwithstanding any other provisions hereof, Track3D shall have no obligation to indemnify or defend Customer for any third party claim pursuant to this Section 9, nor be required to pay losses, damages or expenses under this Section 9, to the extent the claim arises out of: (A) use of the Track3D Solution other than in accordance with the Documentation or the terms of this Agreement; (B) a modification of the Track3D Solution by anyone other than Track3D or its approved representatives, or that is made in whole or in part in accordance with Customer’s specifications; (C) use of the Track3D Solution in combination with any other third party hardware, software, database or materials not provided or approved by Track3D where, absent such combination, the Track3D Solution would not be infringing; or (D) where Customer continues to engage in the allegedly infringing activity after receiving notice thereof or after being provided with modifications that would have avoided the alleged infringement. If Customer’s use of the Track3D Solution has become, or in Track3D’s opinion is likely to become, the subject of any claim of infringement, Track3D may at its option and expense: (i) procure for Customer the right to continue using the Track3D Solution as set forth herein; (ii) modify the Track3D Solution to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer any unused pre-paid fees on a pro rata basis that are attributable to Track3D Solution access that will not be provided due to such termination. This Section 9 states Track3D’s entire and exclusive obligation, and Customer’s exclusive remedy, for any claim of any nature related to the infringement or misappropriation of third-party intellectual property rights.
10. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE TRACK3D SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”, TRACK3D MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE TRACK3D SOLUTION, THE SUPPORT SERVICES, OR ANY OTHER SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TRACK3D EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. TRACK3D DOES NOT WARRANT THAT THE TRACK3D SOLUTION IS OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE TRACK3D SOLUTION WILL BE UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH THE TRACK3D SOLUTION CAN OR WILL BE CORRECTED. OUTPUTS GENERATED THROUGH THE TRACK3D SOLUTION ARE INFORMATIONAL IN NATURE AND DO NOT CONSTITUTE PROFESSIONAL ADVICE, CERTIFIED QUANTITIES, OR CONTRACTUAL DETERMINATIONS.
11. Limitation of Liability
EXCEPT WITH RESPECT TO (i) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN; (ii) A PARTY’S BREACH OF THE CONFIDENTIALITY SET FORTH HEREIN; (iii) BODILY INJURY OR DEATH; OR (iv) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, VENDORS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. EXCEPT WITH RESPECT TO (i) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN; (ii) BODILY INJURY OR DEATH; OR (iii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO TRACK3D DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE FIRST CLAIM (OR, TO THE EXTENT TWELVE (12) MONTHS HAVE NOT YET ELAPSED, THEN THE MONTHLY AVERAGE OF FEES PAID TO DATE MULTIPLIED BY TWELVE (12)).
12. Miscellaneous
12.1 Governing Law. The laws of the State of California shall govern this Agreement, without reference to conflicts of law rules or principles.
12.2 Dispute Resolution; Remedies. Except for any Excluded Claims, this Section 12.2 shall apply to all disputes, claims, actions, suits, controversies or other proceedings or questions arising under or relating to this Agreement (collectively, but excluding any Excluded Claims, “Disputes”). If the Parties have a Dispute, a senior representative shall make reasonable efforts to resolve the applicable Dispute. If any such Dispute is not resolved by the applicable senior representatives within fourteen (14) days, it may referred to and resolved by arbitration under the under the Arbitration Rules and Mediation Procedures (available at http://www.adr.org) of the American Arbitration Association (“AAA”) then in effect. The number of arbitrators will be three (unless otherwise agreed between the Parties in writing). The Parties shall each nominate one arbitrator. The third arbitrator, the chair of the tribunal, will be nominated by the Parties, failing which the chair will be appointed as provided in the AAA arbitration rules. The place and seat of arbitration shall be San Francisco, California. The tribunal is authorized to order interim and conservatory measures and will have the discretion to decide the case, in whole or part, solely on the documents submitted by the Parties. Except as may be required by law or as may be required to enforce this Section 12.2 or any award issued pursuant to this arbitration, no Party (either directly or through its representatives) may disclose the existence, content, or results of any arbitration hereunder without the prior consent of both Parties. The costs of the arbitration will be borne by the Parties equally, provided that each Party shall bear its own legal fees and costs. The tribunal’s awards will be final and binding, and the Parties irrevocably waive their right to any form of appeal, recourse, or review of the award by any court or other judicial authority, insofar as such waiver may be validly made. Judgment upon the award may be entered in any court having jurisdiction. IN AGREEING TO ARBITRATE ANY DISPUTES AMONG THE PARTIES, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. “Excluded Claims” means (i) any action or proceeding that may be commenced by any third party against either Party in connection with this Agreement, (ii) a Party’s breach of its confidentiality obligations under this Agreement, or (iii) disputes arising out of, or relating to, the infringement of the intellectual property rights of a Party. The Parties agree to submit Excluded Claims to the exclusive jurisdiction of the state and federal courts sitting for San Francisco, California. The foregoing shall not prevent the Parties from using alternative dispute resolution proceedings for Excluded Claims if the Parties mutually agree to do so.
12.3 Force Majeure. The obligations of the Parties hereto shall be subject to war, acts of God, acts of public enemies, strikes, labor disturbances, earthquakes, fires, floods, epidemics, pandemics, and/or any other causes beyond the reasonable control of the Parties (each, a “Force Majeure Event”), and the Parties hereto shall be excused from any failure to perform any obligation hereunder to the extent such failure is caused by a Force Majeure Event. Each Party will promptly notify the other upon becoming aware that a Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement.
12.4 Assignment. Neither Party shall assign, transfer, or otherwise delegate any of its rights, duties, or obligations under this Agreement, in whole or in part, to any individual, firm or corporation without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned, or delayed, and any attempted assignment (whether by operation of law or otherwise) shall be void. Notwithstanding the foregoing, Track3D may assign its rights, duties, and obligations hereunder, without prior notice to, but without the prior approval of, Customer, to a party that succeeds to all or substantially all of its assets or business (whether by sale, merger, operation of law or otherwise). This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their successors and permitted assigns.
12.5 Waiver; Severability; Entire Agreement. The failure on the part of either Party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby. This Agreement (including any Schedules, Exhibits and attachments, which are hereby incorporated herein by reference) constitute the final and entire agreement between the Parties, and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.
12.6 The Track3D Solution, Support Services, or other technology Track3D makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users or others to access or use Track3D Solution or Support Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or the Crimean, Donetsk, or Luhansk regions of Ukraine) or in violation of any U.S. export law or regulation.
12.7 In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term; (viii) any reference to “dollars” means United States Dollars; (ix) all references to “days” refer to calendar days; and (x) the word “or” is not exclusive. This Agreement has been executed in English and the English language version shall control notwithstanding any translations of this Agreement. Unless otherwise expressly permitted under this Agreement, all deliverables will be in English.
13. Definitions
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
“Access Protocols” means the access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer and its Authorized Users to access the Track3D Solution.
“Affiliate” means with respect to a Party, a legal entity which (a) such Party owns; (b) owns such Party; or (c) is under common ownership with such Party; where ownership means more than fifty percent (50%) ownership of the voting securities (representing the right to vote for the election of directors or other managing authority). An entity will be considered an Affiliate only for such time as such equity interest is maintained.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Track3D Solution in connection with Customer’s account, and who have been supplied user credentials by Customer (or by Track3D at Customer’s request).
“Customer Data” means all data, information, images, and other content provided by Customer or on Customer’s behalf for use in connection with the Track3D Solution and processed by or on behalf of Track3D solely on behalf of Customer.
“Confidential Information” means any confidential or proprietary information of a Party that is disclosed to the other Party under this Agreement and labeled or otherwise clearly identified as “confidential” or the equivalent at the time of disclosure or which, based on the nature of the information or circumstances of disclosure, the Receiving Party would have reason to know the information is confidential or proprietary. Confidential Information shall not include any information which: (i) is at the time of its disclosure hereunder generally available to the public; (ii) becomes generally available to the public through no fault of the Receiving Party; (iii) can be reasonably demonstrated to be in the possession of Receiving Party prior to its initial disclosure hereunder without any obligation of confidentiality binding on Receiving Party with respect to such information; or (iv) is acquired from a third party having a right to disclose the same to Receiving Party without breach of any confidentiality obligation.
“Track3D Solution” means the Track3D SaaS solution, as further described in the Documentation, which enables the aggregation, monitoring, processing, tracking, and management of construction project data and related visual and photo documentation.
“Derived Data” means any data derived from processing Customer Data using the Track3D Solution or Services, including, without limitation, usage data and analytics.
“Documentation” means the then-current, commercially available user manuals, training materials and technical manuals relating to the Track3D Solution as provided to Customer by Track3D pursuant to this Agreement.
“Effective Date” means the effective date for an applicable Order Form as specified in the applicable Order Form.
“Intellectual Property Rights” means, on a world-wide basis, any and all (a) rights associated with works of authorship, including without limitation, copyrights, copyrightable rights, moral rights and mask work rights; (b) trademark, service mark and trade name rights and any similar rights recognized under applicable law; (c) rights in confidential information and trade secrets; (d) patents and patentable rights; (e) all rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology; (f) all other intellectual and industrial property rights of every kind or nature, whether arising by operation of law, contract, license or otherwise; and (g) all international, national, foreign, state and local registrations, applications for registration and any renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisions, reissues, substitutions and reexaminations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of the foregoing (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions; to sue for all past, present and future infringements or other violations relating thereto; and to settle and retain all proceeds from any such actions).
“Final Project Report” means, for both visual and/or progress projects, the downloadable version of the visual Customer Data such as 360˚ video walks, phone and 360˚ images, in relation to the project of the Customer that is output from the Track3D Solution (but which does not include (i) raw data, which is input into the Track3D Solution and which is not stored by Track3D; and (ii) progress data) which can be seen using a browser based page that can access such visual Customer Data through the offline deliverable file on the Customer’s desktop/laptop.
“Order Form” means an order executed by the Parties in writing which references these Terms and specifies the scope of the rights to be granted to Customer with respect to the Track3D Solution, the associated fees and term, and such other terms as may be mutually agreed to be the Parties and set forth in an applicable Order Form. Each Order Form shall be subject to, and incorporate by reference, this Agreement.
“Party” or “Parties” means Track3D and/or Customer individually or together, as the context dictates.
“SAP” means the Support and Availability Policy located at https://track3d.ai/support-and-availability-policy/, which may be updated by Track3D from time to time; provided, that no such update shall materially diminish Track3D’s responsibilities under the Support and Availability Policy.
“Support Services” means the support services and related service level commitments to be provided by Track3D as set forth in the SAP, and such other support services as may be provided by Track3D from time to time.
14. Project Initialization and Data Structuring
14.1 The provisions of this Section 14 apply solely where Project Initialization and Data Structuring are specified in the applicable Order Form.
14.2 Track3D’s Project Initialization and Data Structuring activities, including any quantity extraction or structuring of project documentation, are performed solely for the purpose of enabling the functionality of the Track3D platform. The Parties acknowledge that (i) Track3D is not acting as a licensed quantity surveyor, cost consultant, engineer, architect, and/or other construction professional, (ii) Track3D does not provide certified takeoffs, cost estimation services, and/or payment certification services; and (iii) outputs generated through the Track3D Solution are informational in nature and do not constitute professional advice, certified quantities, or contractual determinations.
14.3 Project Initialization and Data Structuring activities are performed by Track3D on a one-time basis using Customer Data and/or documentation at the time of initiation. Track3D is not responsible for monitoring or incorporating subsequent revisions in Customer Data and/or documentation unless separately agreed to in writing on mutually agreed terms. The Customer is solely responsible for uploading updated Customer Data and/or documentation and updating system representations (including modifying or deleting assets as necessary). The Parties acknowledge that Track3D shall not be responsible for inaccuracies resulting from the Customer’s failure to update revised documentation.
14.4 For the purposes strictly limited to the manual phase of the Project Initialization and Data Structuring, Track3D’s third party vendors (“Authorized Vendors”) require design data such as drawings and building information modeling along with location information, in order to manually process it within their own systems. Since the Authorized Vendors may be based in different geographical locations, the Customer acknowledges and expressly agrees that Track3D shall be permitted to disclose and provide information to the Authorized Vendors for the sole and limited purposes of the manual phase of the Project Initialization and Data Structuring. At no point of time shall Track3D provide access to the Authorized Vendor to the visual capture Customer Data or broader project Customer Data.
15. Additional Terms for the Track3D Mobile Application
15.1 If you access or download our mobile application (the “App”) from the Apple App Store, you agree to use the App only: (1) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (2) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service as of the effective date of this Agreement. In addition, if you accessed or downloaded the App from any app store or distribution platform (like the Apple App Store or Google Play) (each, an “App Provider”), then you acknowledge and agree that:
15.1.1 This Agreement is between you and Track3D, and not with the App Provider, and that, as between Track3D and the App Provider, Track3D is solely responsible for the App.
15.1.2 The App Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
15.1.3 In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider and the App Provider will refund to you any purchase price you paid for the App (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be the sole responsibility of Track3D.
15.1.4 The App Provider is not responsible for addressing any claims you or any third party may have relating to the App or your possession and use of the App, including, but not limited to: (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
15.1.5 In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Track3D will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim solely to the extent required by this Agreement.
15.1.6 The App Provider and its subsidiaries are third-party beneficiaries of this Agreement as related to your license of the App, and, upon your acceptance of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App against you as a third party beneficiary thereof.
15.1.7 You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
