Terms and Conditions
These Terms and Conditions exclusively govern the provision of Services and Support by Doxel, Inc., a Delaware corporation (“Service Provider”), to the customer (“Customer”) identified in the order form, quote, proposal, purchase order or other written document that further describes such Services and Support and to which this Agreement is attached (the “Order Form” and together with these Terms and Conditions, the “Agreement”).
By Customer’s acceptance of delivery of the Services and/or Support, Customer certifies that it has read, understands and agrees to this Agreement. This Agreement supersedes all prior or contemporaneous agreements or arrangements, whether written or oral, governing the subject matter of this Agreement. Any terms or conditions proposed by Customer (i) by separate written document, (ii) by quotation, acknowledgment or invoice (including pre-printed or linked terms and conditions), and/or (iii) by any other means (including course of dealing, course of performance or usage of trade) that are in addition to, inconsistent or in conflict with, or different from, this Agreement will not have any force or effect and are hereby rejected, even if submitted at a point in time after the Order Form referencing this Agreement. Neither Service Provider’s commencement of performance, nor Service Provider’s delivery of Services or Support, nor Service Provider’s failure to object to terms and conditions contained in any communication from Customer shall constitute an acceptance of any terms and conditions proposed by Customer that are in addition to, inconsistent or in conflict with, or different from, this Agreement.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Service Provider will provide Customer with services for tracking construction progress at construction sites through an artificial intelligence solution, and access through the internet to Service Provider’s cloud-based dashboard for reviewing Reports, each as further described in the Scope of Services section of the Order Form (collectively, the “Services”). The Services are subject to modification from time to time at Service Provider’s sole discretion, for any purpose deemed appropriate by Service Provider. Service Provider will use reasonable efforts to give Customer prior written notice of any such modification.
1.2 Service Provider reserves the right to suspend Customer’s access to the Services in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Service Provider, and Service Provider reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Service Provider.
1.3 Subject to the terms hereof, Service Provider will use commercially reasonable efforts to provide the following support, as well as any other support described in the Order Form, to Customer for the Services (“Support”): twenty-four (24) hours a day, seven (7) days a week telephone and/or online chat support.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal business use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws).
2.2 Customer will cooperate with Service Provider in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Service Provider may reasonably request. Customer will also cooperate with Service Provider in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Service Provider.
2.4 Customer hereby agrees to indemnify and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services or Software. Although Service Provider has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Service Provider may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.6 Customer acknowledges and agrees that Service Provider’s performance is dependent on and can only be held accountable with (and Service Provider shall be deemed not to be in breach hereof absent) Customer’s cooperation, timely feedback and approvals, and effective performance of Customer’s obligations under this Agreement, including those set forth in the Commissioning Plan and Ongoing Deliverables, Roles & Responsibilities sections of the Order Form.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
3.3 Customer acknowledges that Service Provider does not wish to receive any Proprietary Information from Customer that is not necessary for Service Provider to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Service Provider may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors, lenders or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Service Provider alone (and its licensors, where applicable) shall exclusively retain ownership of all right, title and interest in and to (a) the Services and Software, including any modifications, amendments, enhancements or improvements therein or thereto, and (b) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or Software, which are hereby assigned to Service Provider, including, in each case, all intellectual property and other proprietary rights therein and thereto. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, non-transferable, non-sublicensable, revocable right to use the Services and Software for its internal business purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or to the Services and Software, or any intellectual property and other proprietary rights therein or thereto.
4.2 Service Provider will collect and/or capture certain content and other data from Customer and Customer’s owned and/or managed site(s) (collectively, “Content”) in connection with its performance of this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content and the intellectual property and other proprietary rights with respect to that Content. Customer hereby grants (and Customer hereby represents and warrants that Customer has the right to grant) Service Provider a non-exclusive, royalty-free, fully paid up, irrevocable, perpetual, transferable, sublicensable, worldwide license to collect, access, analyze, evaluate, process, integrate, modify, copy, display, publish, transmit and use for any purpose the Content solely for Service Provider to (i) provide the Services, (ii) respond to service or technical inquiries of Customer, and (iii) develop and improve Service Provider’s products and services, improve the machine learning and algorithms powering Service Provider’s products and services, conduct analytics regarding its products and services, and engage in other internal Service Provider business purposes, provided that with respect to clause (iii), the Content is utilized in an anonymized and/or aggregated manner such that Customer and its client(s), as applicable, are not identified. If Service Provider receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Service Provider may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Service Provider from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
4.3 Service Provider may (and Customer hereby grants Service Provider a non-exclusive, non-transferable, non-sublicensable, revocable right to) include Customer’s name and logo on Service Provider’s website, marketing materials, and customer lists.
5. PAYMENT OF FEES
5.1 Customer will pay Service Provider the applicable fees as set forth on the Order Form (the “Fees”). If Customer use of the Services exceeds any service limits described in the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage, at the rate set forth on the Order Form (or at Service Provider’s then-current list prices, if no such rates are specified), and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay Service Provider for additional services, such as integration fees or other consulting and professional services fees. All payments will be made in accordance with the Order Form and, for clarity, are due on the date specified in the Order Form.
5.2 Fees not paid on the applicable due date are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is higher, plus all expenses of collection, including reasonable attorneys’ fees. All Fees under this Agreement are non-refundable, and are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes unless Customer has provided Service Provider with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving sixty (60) days (or ten in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty (or ten)-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.
6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. FORCE MAJEURE
In no event shall Service Provider be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, construction delays, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; Service Provider shall use reasonable efforts which are consistent with accepted practices in Service Provider’s industry to resume performance as soon as reasonably practicable under the circumstances.
8. WARRANTY DISCLAIMER
THE SERVICES, SOFTWARE AND SERVICE PROVIDER’S PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. SERVICE PROVIDER (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AS TO ACCURACY OR INACCURACY OF DATA AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL SERVICE PROVIDER (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES, SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF SERVICE PROVIDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO SERVICE PROVIDER HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), 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. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Service Provider are “commercial items” and according to DFAR section 252.227-7014(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.
If any provision of this Agreement is found to be unenforceable or invalid, 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. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Service Provider may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that 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 a 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 Customer does not have any authority of any kind to bind Service Provider 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 or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Service Provider will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.