MASTER SERVICE AGREEMENT

(online version)

IMPORTANT INFORMATION – PLEASE READ THIS SITEAWARE INC.’S MASTER SERVICE AGREEMENT (“MSA” OR “AGREEMENT”) CAREFULLY BEFORE SETTING UP YOUR ACCOUNT AND AND/OR BEFORE STARTING YOUR USE OF THE SITEAWARE SOLUTION (DEFINED BELOW). THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS WHICH GOVERN YOUR (“YOU” OR “CUSTOMER“), ACCESS TO AND USE OF THE SOLUTION. BY CREATING AN ACCOUNT WITH SITEAWARE AND/OR USING THE SOLUTION (IN WHOLE OR IN PART) IN ANY WAY OR MANNER, YOU AGREE THAT YOU ARE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT OPEN AN ACCOUNT WITH SITEAWARE AND IMMEDIATELY AVOID THE USE OF THE SOLUTION AND RETURN IT TO SITEAWARE.

  1. Definitions. For purposes of this Agreement and all Exhibits thereto, the following capitalized terms shall have the following meaning:
    1. “Consultant” means Siteaware Inc.
    2. “Purchase Order” means a written purchase order for Consultant’s Solution and Services, provided by Consultant and signed by Customer or otherwise signed by both parties.
    3. “Services” means Digital Construction Verification services, all as further detailed in the applicable Purchase Order.
    4. “Solution” means Consultant’s online Digital Construction Verification (DCV) repository and all manuals, specifications, and other documentation provided by or on behalf of Consultant, as well as any updates or upgrades provided by Consultant herein.
    5. “Authorized Users” – Customer’s general contractor, its subcontractors, trades, project developers and architects who are intended to use the Digital Construction Verification services on Customer’s behalf pursuant to this Agreement.
    6. “Siteaware” means Siteaware Inc. a Delaware corporation with offices located at 4009 Banister Lane, Suite 280, Austin, TX 78704.
  2. Services. Consultant will provide Customer with Digital Construction Verification services, all in the scope which is further detailed in the applicable Purchase Order (the “Services”). The Purchase Order will detail the scope of Services purchased out of the different types and packages of Services are set forth in Exhibit A hereto (“Scope of Work”). Additional Services not defined in Exhibit A may be defined in a Purchase Order. Customer may enable its Authorized Users to use the Digital Construction Verification services on Customer’s behalf for the purpose of enabling Customer to fulfill its rights under this Agreement, pusuant to the license and restrictions set forth in this Agreement. Customer shall be responsible to ensure the compliance of its Authorized Users with this Agreement and shall be liable for any act or omission by its Authorized Users in breach thereof. Customer has the right to grant access for use of the Services to some of its Authorized Users subject to payment, under the provisions of Section 3 below.
  3. License. Subject to the terms and conditions of this Agreement, Consultant hereby grants Customer, during the applicable subscription term specified in the Purchase Order, and Customer accepts, a limited, non-exclusive non-transferable right to use the Solution during the Term internally, solely for its intended purposes and in accordance with the terms of this Agreement and subject to any specific use limitations specified in the Purchase Order. The Customer may enable certain Authorized Users to use the Solution during the Term of the purchase Order subject to payment; provided that (a) as between the Customer and Consultant, the responsibility of the use of the Solution, including but not limited to the adherence to this MSA shall remain at all times with Customer; (b) Consultant requires that all Authorized Users are made aware of, expressly consent to and adhere to this MSA and the foregoing is the responsibility of the Customer; and (c) Customer shall be responsible, at its discretion to require its Authorized Users who receive the right to use the Solution to sign any document or purchase any insurance it sees fit.
  4. Limitations on Use. Except as expressly permitted herein, Customer shall not, directly or indirectly: (i) modify, incorporate into or use the Solution with other software, or create a derivative work of any part of the Solution; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share the Solution or any of Customer’s rights under this Agreement with or to anyone else; (iii) copy or reproduce, distribute or publish the Solution; (iv) modify, disassemble, decompile, reverse engineer, revise or enhance the Solution or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Solution or use the Solution for purposes of competitive analysis or the development of a competing software product or service; or (v) allow the Solution or results of any Services to be sold, distributed, accessed, downloaded or exported: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
  5. Warranties and Representations. Each party warrants and represents to the other party that it has the full corporate power and authority required to enter into this Agreement and to carry out its undertakings and obligations hereunder. Customer warrants and represents that it has obtained all required permits, consents and authorizations in respect of its construction work and the construction site and to allow Consultant to record video footage on the site, including footage of people working or otherwise present in the vicinity of the construction site as recorded for the provision of the Services.
  6. Ownership.
    1. The footage recorded on Customer’s construction site and reports derived therefrom shall be owned by Customer.
    2. Notwithstanding any other provision to the contrary, the Solution and methods of performing the Services, Consultant Confidential Information and all improvements, enhancements and derivatives of any of the foregoing and all intellectual property rights thereto (“Consultant IPR”) are exclusively owned by Consultant and/or its licensors. All feedback and suggestions provided to Consultant regarding the Solution or the Services shall be deemed as Consultant IPR. This Agreement does not convey to Customer any right, title or interest in the Consultant IPR, other than the revocable and limited right to use the Solution as set forth in Section 3 above.
  7. Fees.
    1. In consideration for the Services and use of the Solution Customer shall pay Consultant the fees set forth in the Purchase Order. Consultant may change its pricing upon the anniversary of any subscription period as per the Scope of Work, or annually with prior written notice to Customer. The fees are exclusive of all tax which will be borne by Customer (except for taxes on Consultant’s income).
    2. Without prejudice to its other remedies, Consultant shall have the right to charge interest on any overdue invoices at the rate of 1½% per month (or the maximum rate permitted under applicable law, if lower) from the date when payment of the invoice becomes due for payment up to and including the date of actual payment.
    3. If any tax or duty has to be withheld or deducted from any payment under this Agreement, Customer shall gross-up the payment under this Agreement by such amount to ensure that after such withholding or deduction Consultant shall receive an amount equal to the payment otherwise required.
    4. Customer will maintain books, records and accounts of all Construction Volume that: (i) are true and complete in all material respects; (ii) have been maintained in accordance with reasonable business practices on a consistent basis; and (iii) are stated in reasonable detail. During the term of this Agreement and for twelve (12) months thereafter, Consultant may, upon ten (10) days’ advance written notice, audit Customer’s books and records in order to verify the Construction Volume. Customer will fully cooperate with Consultant or its auditors in any audit or investigation.
    5. Consultant agrees to offset any payment it receives which expressly includes the above notice and reference from an Authorized User from amounts due from Customer. Customer shall remain liable to the Consultant for payment of all applicable taxes as provided in this Agreement and may charge those, at its discretion, from the Authorized Users.
  8. Disclaimer. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICES AND THE SOLUTION ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CONSULTANT DOES NOT WARRANT THAT THE SERVICES WILL ENABLE CUSTOMER TO IDENTIFY ALL GAPS BETWEEN THE CONSTRUCTION PLANS AND THE ACTUAL WORK OR THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. IT IS CUSTOMER’S RESPONSIBILITY TO MANAGE AND PERFORM THE WORK ON THE CONSTRUCTION SITE AND ANY RELIANCE ON THE SERVICES SHALL BE AT CUSTOMER’S RESPONSIBILITY.
    1. Confidential Information and Privacy. During the term of the Agreement each party may have access to certain non-public or proprietary information or materials of the other party (the “Recipient” and the “Discloser”, respectively), whether in tangible or intangible form (“Confidential Information”). Without derogating from the foregoing, the Solution and methods of performing the Services shall be deemed as Consultant Confidential Information. Confidential Information will not include information or material which the Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to the Recipient hereunder; and/or (b) became part of the public domain after disclosure by Discloser to the receiving party hereunder, through no fault of the Recipient; (c) was in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by the Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser’s Confidential Information. In the event that Recipient is required to disclose Confidential Information of Recipient pursuant to any law or governmental or judicial order, Recipient will promptly notify Discloser in writing of such law or order and reasonably cooperate with Discloser in opposing such disclosure or obtaining such other protective measures. In any event, such disclosure made pursuant to this paragraph will be made solely to the extent required by such law or order (as the case may be). Recipient will use Discloser’s Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and will not disclose Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Recipient will take measures at a level at least as protective as those taken to protect its own confidential information of like nature, but in no event less than a reasonable level, to protect Discloser’s Confidential Information. Recipient will promptly notify Discloser in writing in the event of any actual or suspected unauthorized use or disclosure of any Discloser Confidential Information.
    2. Consultant’s privacy practices are described in its privacy policy available at https://www.siteaware.com/privacy-policy/, as may be amended from time to time by Consultant (“Privacy Policy”). It is hereby agreed that Customer is the controller of any and all personal information included in the footage, results and reports.
  9. Indemnification.
    1. Consultant shall defend Customer against any third party claim or demand alleging that the Solution infringe the intellectual property rights of a third party (for the purposes of this Section, “Claim”). Consultant shall indemnify and hold Customer harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.
    2. Customer shall defend Consultant against any third party claim or demand alleging that there was no authorization for the performance of the Services on the construction site or for collection or use of footage of people present in or near the construction site when the Services were performed (for the purposes of this Section, “Claim”). Customer shall indemnify and hold Consultant harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.
    3. The indemnified party shall: notify the indemnifying party of a Claim, promptly after becoming aware thereof; render full control over the defense and settlement of the Claim to the indemnifying party; and provide reasonable assistance in the defense at indemnifying party’s expense.
  10. Limitation of Liability. EXCEPT FOR CLAIMS ARISING FROM BREACH OF CONFIDENTIALITY OR THE INDEMNIFICATION OBLIGATION HEREIN, IN NO EVENT SHALL CONSULTANT OR ITS AFFILIATES BE LIABLE, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR LOSS OF DATA. EXCEPT FOR CLAIMS ARISING FROM BREACH OF CONFIDENTIALITY AND THE INDEMNIFICATION OBLIGATION HEREIN, CONSULTANT’S AND/OR ITS AFFILIATE’S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CONSULTANT HEREIN DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
  11. Insurance. For each project under a Purchase Order, Consultant shall comply with the insurance requirements set forth in Exhibit B.
  12. Term and Termination.
    1. This Agreement shall be in force for the term set forth in the Purchase Order (“Initial Term”). At the end of the Initial Term and each renewal term, the term of the Purchase Order shall automatically renew for additional twelve (12) months periods, unless either party notifies the other party in writing of its election not to renew the Agreement at least ten (10) days’ prior to the renewal date. If there is no Purchase Order in force either party may terminate this Agreement upon written notice.
    2. Either party may terminate this Agreement by notice to the other party: (i) upon the breach by the other party of any of its obligations hereunder and such other party’s failure to cure such breach within thirty (30) days of such written notice; (ii) by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for either party or its property; (b) either party makes a general assignment for the benefit of its creditors; (c) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) either party is liquidated or dissolved.
    3. Upon expiration or termination of this Agreement for any reason: (i) Customer’s right to use the Solution hereunder shall immediately terminate and Customer shall immediately cease using the Solution; (ii) each party shall promptly erase/delete or return to the other party, at such party’s election, all of its confidential information held or controlled by it in any form or media; and (iii) Customer shall discharge in full all due sums owed to Consultant under this Agreement, which sums shall become immediately due and payable on the date of termination of the Agreement. The following Sections shall survive termination/expiration hereof: 1 and 4-10, 12.3 and 13. Consultant shall retain Customer’s data for thirty (30) days following termination or expiration of the Agreement in order to enable Customer to export and back-up its data and after said period Consultant may delete the data. Customer may extend the backup retention period by purchasing additional periods
  13. General. (13.1) Waiver; Remedies. Failure of a party to insist upon the performance by the other party of any term hereof shall not be deemed a waiver of the rights of the first-mentioned party with respect thereto. All waivers must be in writing. (13.2) Notices. All notices and other communications required or desired to be communicated by one party to the other shall be in writing and shall be deemed delivered immediately when sent by email (with written confirmation of receipt), or delivered by hand or five (5) days after mailing by registered mail to the respective addresses set forth at the head of the
    Agreement. Provided, however, that any notice of change of address shall be effective only upon receipt. (13.3) Assignment. Other than in the framework of a merger, a transaction for the sale of all and/or material part of either party’s assets and/or any other similar transaction, neither party may assign or transfer any of its rights or obligations hereunder, whether by contract or by operation of law, except with the other party’s prior written consent not being unreasonably withheld. (13.4) Relationship of the Parties. The relationship established between the parties by this Agreement is solely that of independent contractors. Neither party shall be deemed to be an agent or legal representative of the other party and no employee of either party shall be considered to be an employee of the other party for any purposes whatsoever. Neither party shall be liable for any expenses incurred by the other party which arise out of or in connection with the Agreement. (13.5) Entire Agreement; Modification. This Agreement and the Privacy Policy, including the Exhibits and Purchase Orders hereto, set forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior discussions, agreements, representations and understandings between them. This Agreement shall not be modified except by a written instrument signed by both parties. (13.6) Governing Law and Jurisdiction. This Agreement is governed by the laws of Texas, U.S.A. without regard to conflict of laws provisions thereof. The Federal and State courts in Houston, Texas shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement. (13.7) Severability. Any provision of this Agreement prohibited by, or unenforceable under, applicable law shall be ineffective to the extent of such prohibition and shall be replaced by an enforceable provision to the same or the nearest possible equivalent effect. Notwithstanding the foregoing, the other provisions hereof shall continue in effect unless the ineffectiveness of any provision shall substantially affect the consideration received by either party hereunder. (13.8) Force Majeure. With the exception of payment obligations, neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. (13.9) Aggregate Data. Consultant may use the footage taken on the construction site for machine-learning and may retain, use and transfer aggregate data that does not identify Customer for any purpose. (13.10) No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer and Consultant any rights, remedies or other benefits under or by reason of this Agreement.

Exhibit A

Scope of Work

As discussed and attached to the Purchase Order

Exhibit B

Insurance Requirements

For the purpose of Consultant’s onsite data capture, the Consultant shall provide the following insurance set.

  1. Workers Compensation
    1. Consultant shall provide, at their own expense Worker’s Compensation to cover full liability under the Worker’s Compensation Laws of the jurisdiction in which the project is located at the statutory limits required by said laws.
    2. The policy required by paragraph 2.1 shall be endorsed to include a Waiver of Subrogation in favor of ACLP (and other entities as required by the Prime Contract).
  2. Employers’ Liability Insurance
    1. Consultant shall provide, at their own expense Employer’s Liability with the following minimum limits of liability:
      $1,000,000 Each Accident
      $1,000,000 Disease-Policy Limit
      $1,000,000 Disease-Each Employee
    2. The policy required by paragraph 2.1 shall be endorsed to include a Waiver of Subrogation in favor of ACLP (and other entities as required by the Prime Contract).
  3. Commercial General Liability Insurance (1986 ISO form or its equivalent)
    1. Consultant shall provide, at their own expense Commercial General Liability Insurance, on an “occurrence basis”, including insurance for operations, independent contractors, products completed operations, and contractual. The insurance required by this paragraph 3.1 shall be in limits not less than the following:
      $2,000,000 General Aggregate
      $2,000,000 Products-Completed Operations Aggregate
      $1,000,000 Personal & Advertising Injury
      $1,000,000 Each Occurrence
      $50,000 Fire Damage (any one fire)
      $5,000 Medical Expense (any one person)
    2. The policy required by paragraph 3.1 shall be endorsed to name ACLP (and other entities as required by the Prime Contract) as Additional Insureds, utilizing form CG 2010 (11/85) – Additional Insured – Owners, Lessees or Contractors, or its equivalent.
    3. The Commercial General Liability policy (General Aggregate) shall be endorsed to include CG 25 03 – Aggregate Limits of Insurance (Per Project) or its equivalent.
  4. Automobile Liability Insurance
    1. Consultant shall provide, at their own expense, Automobile Liability Insurance for claims of ownership, maintenance, or use of a motor vehicle at, upon, or away from the project site. The insurance shall cover all owned, non-owned, and hired automobiles used in connection with the Work, with the following minimum limits of liability:
      $1,000,000 Each Accident Limit (Bodily Injury and Property Damage)
    2. The policy required by paragraph 4.1 be endorsed to name ACLP (and entities as required by the Prime Contract) as Additional Insureds, utilizing form TE 99 01B – Additional Insured, or its equivalent.
  5. Excess Liability Insurance
    1. Consultant shall provide, at their own expense Following Form Excess Liability Insurance with coverages at least as broad as those of the primary policies set out in paragraphs 2-4 above, with limits not less than the following:
      $2,000,000 Each Occurrence
      $2,000,000 Each Aggregate
    2. This Excess Liability Insurance shall attach directly over the underlying primary policies, with no break or gap in coverage between them.
  6. Professional Errors and Omissions Liability Insurance
    1. Claim Made Basis
      $3,000,000 Each Claim
      $3,000,000 Each Aggregate
    2. The maximum allowable deductible for this coverage shall be $50,000.
  7. Miscellaneous
    Consultant shall provide to ACLP a Certificate of Insurance setting out the above coverages and limits on the certificate upon request. Said certificate shall state that the policies required by this Exhibit B have been endorsed to provide that the insurers issuing said policies shall give ACLP (and Owner) not less than thirty (30) days prior written notice in the event of cancellation or change in coverage thereunder.
    The insurance requirements set out in this Exhibit B are independent from all other obligations of Consultant under this Agreement and apply whether or not required by any other provision of this Agreement.
    All insurance policies provided pursuant to this Exhibit B shall be primary and non-contributing with, and not in excess of, any other insurance available to ACLP (and any other entity named as an additional insured thereunder).
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