THESE TRACK3D TERMS AND CONDITIONS (AS UPDATED FROM TIME TO TIME BY TRACK3D, 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.
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. The Parties may enter into additional Order Forms at any time during the Term by mutual agreement. All Order Forms are subject to the terms of this Agreement.
2. Implementation
Upon payment of any applicable fees set forth in each Order Form, Track3D agrees to use reasonable commercial efforts to provide standard implementation assistance for the Track3D Solution only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”).
3. 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/sla
4. Platform Updates
Track3D shall have the right, but not the obligation, to implement updates to the Track3D Solution (“Updates”) in Track3D’s sole discretion and without notice to Customer, 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 ContructN 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.
5. Access Rights; Intellectual Property Rights; Customer Data
5.1 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 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.
5.2 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, except to the extent caused by the acts or omissions of Track3D.
5.3 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 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 license and do not constitute the sale of any software program or Intellectual Property Rights to Customer.
5.4 Restrictions on Use. Customer shall not: (a) access or use any portion of the Track3D Solution except as expressly authorized hereunder; (b) cause or knowingly permit decompilation, reverse assembly or reverse engineering of all or any portion of the Track3D Solution; (c) modify 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; or (e) 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 or time-sharing, or use as an application service provider or service bureau.
5.5 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). Subject to the terms and conditions of this Agreement, Customer hereby grants Track3D a limited, worldwide, non-exclusive, royaltyfree license during the Term to use, copy, store, modify, edit, create derivative works of, and transform Customer Data 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, promoting and marketing the Track3D Solution and Track3D other products and services). Track3D may also aggregate Customer Data with data of its other customers for the sole purpose of analyzing and improving Track3D’s services to all customers, so long as Track3D does not disclose Customer Data in a manner that identifies or could be used to identify Customer.
5.6 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.
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 or contractors who have a need to know, and, in each case, who are subject to confidentiality obligations 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.
6.2 Publicity. Customer hereby grants to Track3D a limited, non-exclusive right and license to use Customer’s name, logo, and trademarks for marketing or promotional purposes on Track3D’s website(s) and in communications, whether public or private, with its existing or potential customers, subject to any trademark usage guidelines provided to Track3D by Customer in advance. If requested by Track3D, the Parties will work together in good faith to develop a Customer case study with respect to Customer’s use of the Track3D Solution and/or to issue a press release announcing the relationship between the Parties contemplated hereunder.
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 undisputed fees, charges and expenses within thirty (30) days following receipt of an applicable invoice. 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.
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 non-breaching Party may terminate this Agreement and all outstanding Order Forms by providing written notice to the breaching Party, provided that, if the breach is capable of cure, the breaching 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 5.2, 5.3, 6.1, 7, 9, 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 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. 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.
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 OTHER 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.
11. Limitation of Liability
Except with respect to EITHER PARTY’S INDEMNIFICATION OBLIGATIONS set forth herein; A PARTY’S BREACH OF THE CONFIDENTIALITY SET FORTH HEREIN; bodily injury or death; OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (A) IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS 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; and (B) 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 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. 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, “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.
12.3 Force Majeure. The obligations of the Parties hereto shall be subject to all laws and regulations, both present and future, of the government having jurisdiction over any of the Parties hereto and to war, acts of God, acts of public enemies, strikes, labor disturbances, fires, floods, epidemics, pandemics and 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.
13. Definitions
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
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- “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.
- “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.
- “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).
- “Order Form” means an order executed by the Parties which 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/sla, 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.