TERMS AND CONDITIONS

 

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.

1.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: reverse engineer,   decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purpose or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises   or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2 Further, Customer may not violate of any  restrictions, laws   or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United  States or foreign agency or  authority. As defined in FAR section 2.101, the Software and   documentation are “commercial items” and according to DFAR  section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software  documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3  Customer represents, covenants, and warrants that Customer  will use the Services only in compliance with all applicable laws and regulations.   Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4  Customer shall be responsible for obtaining and maintaining any equipment and ancillary needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other  party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof. Information is not Proprietary if the Receiving Party can document that the information: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any  Proprietary  Information  of  the  Disclosing Party or (e) is required to be disclosed by law.

3.2 Customer data collected will be treated confidential. Customer  shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, (b) all improvements, enhancements or modifications thereto solely developed by Company, (c) any software, applications, inventions or other technology developed in connection with Implementation Services or support solely developed by Company, and (d) all intellectual property rights related to any of the foregoing. (e) any new inventions jointly developed by the parties will be jointly owned and subject to future agreements concerning sharing of ownership and intellectual property rights.

3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the   Services and related systems and technologies and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its  business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

4.1 Customer will pay Company the then applicable fees and amounts described in Exhibit E; and, at the times and amounts in Milestone Payment Schedule at Exhibit G, for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5. TERM AND TERMINATION

5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and may be automatically renewed by Customer for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), by providing a Renewal Notice at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company shall delete stored Customer Data. Sections of this Agreement that survive termination are: accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control; but, Company shall use reasonable efforts to provide advance notice in writing or e-mail of any scheduled service disruption.   HOWEVER COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY  DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED   WARRANTIES OF MERCHANTABILITY. COMPANY WARRANTS THE EQUIPMENT WILL BE FIT FOR THE PARTICULAR PURPOSE AS ADVERTISED. IF PRODUCTS DO NOT OPERATE AS ADVERSTISED COMPANY WILL REPAIR OR REPLACE DEFECTIVE EQUIPMENT AT ITS EXPENSE. 

7.  INDEMNITY

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.   If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND CUSTOMER AND THEIR SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE UNDER ANY CONTRACT,  NEGLIGENCE, (EXCEPT FOR REFUNDS OUTLINED IN INITIAL SERVICE TERM), STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THEIR REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS

THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. MISCELLANEOUS

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 Company’s prior written consent. This Agreement is the complete an 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. 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. Customer and Company have no authority to bind each other 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; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press  release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

 

EXHIBIT A 

Statement of Work – Implementation Services

  1. Review project drawings and scope the installation plan

  2. Install and setup Kwants & assign smart badges and smart bands

  3. Use smart badges and smart bands to update headcount in zones

  4. Send alerts based on social distancing rules

  5. Send Alerts for any times when an SOS button is pressed

  6. Workforce Analytics software with Microsoft Project and P6

  7. Tracking and log social interactions between workers

EXHIBIT B 

Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.

EXHIBIT C 

Support Terms

Company will provide Technical Support to Customers via Screen Sharing platform, telephone and electronic mail on weekdays during the hours of 9:00 am through 7:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”). Limited support of 10am through 2pm Eastern time, will be provided during Saturdays.

Customer may initiate a helpdesk ticket during Support Hours by calling 646- 580-4147 or 917-324-7349 or any time by emailing  [email protected] OnTarget will collaborate with XL Construction  personnel to review, reply and correct (if necessary) any issue raised. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

 

EXHIBIT D

Data Processing and Security

The Parties agree to process all Data (defined as all information in any form that may be provided during the provision of services under this AGREEMENT), including Personal Data (defined as any information in any form that can directly or indirectly identify an individual) is in compliance with the terms of this AGREEMENT, and all applicable data protection laws, privacy laws, data protection regulations and privacy regulations, including the General Data Protection Regulation ((EU) 2016/679 (“GDPR”) and the California Consumer Privacy Act for any Data subject to its jurisdiction (“Applicable Data Protection Laws”).  The parties agree to process all Data, including Personal Data, only for the limited and specified purposes as set forth in this AGREEMENT.  The Parties agree to cooperate in good faith to revise this AGREEMENT as appropriate to remain compliant with Applicable Data Protection Laws.  Where a party appoints a third party to process Data, it shall ensure that the third party is subject to, and contractually bound by, at least the same obligations as set forth in this AGREEMENT.  

The Parties shall implement appropriate technical security and organizational measures in accordance with Applicable Data Protection Laws and industry standards to protect Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.  Each party shall notify the other party promptly and without undue delay (no later than 48 hours) after becoming aware of any Security Incident (defined as any improper, unauthorized or unlawful access to, use of, or disclosure of Data), and shall use commercially reasonable efforts to mitigate any harmful effect.