Co-Development Agreement

This Co-Development Agreement order form is subject to and made part of the terms attached hereto as Exhibit A (the “Agreement”) is dated as of the Effective Date and is entered by and between Active Estimating and the Licensee set forth below. Each of Active Estimating and Licensee is a “Party”, and together they are the “Parties”.

PARTY INFORMATION

Active Estimating

Licensee

Active Estimating Inc.
508 2nd Street, Suite 208
Davis, CA 95616

[Name]
[Address]

Active Estimating Contact

Licensee Contact

Name:
Title:
Email:
Phone:

Name:
Title:
Email:
Phone:

KEY BUSINESS TERMS

Effective Date

[Date]

Platform

Active Estimating will provide access to and use of Active Estimating’s proprietary construction cost estimation platform, as further described on the Active Estimating website at https://activestimating.com (the “Platform”)

Term

Commencing on the Effective Date and continuing for one (1) month (the “Initial Term”) and automatically renewing for successive one (1) month periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless and until terminated as set forth herein.

Fees

US$[___] per month //or// The Platform will be provided at no charge in consideration for the Feedback.

Evaluation

The objective of this Agreement is for (1) Licensee to test the Platform for potential use by Licensee for its internal business purposes and (2) Licensee to test the Platform and provide feedback on potential improvements to the Platform and on related documentation and processes (the “Evaluation”)Following the expiration or termination of this Agreement, Licensee and Active Estimating may agree to a further commercial license of the Platform, but neither Party is under an obligation to do so.

Territory

US

The Parties have caused this Evaluation Agreement to be executed by their duly authorized representatives effective as of the Effective Date.

ACTIVE ESTIMATING INC.
By:
Name:
Title:

[LICENSEE]
By:
Name:
Title:

EXHIBIT A

Co-Development Agreement Terms

  • Active Estimating’s Responsibilities. Active Estimating will make available to Licensee the Platform promptly after the Effective Date. In addition, Active Estimating will deliver to Licensee such documentation as Active Estimating deems necessary for the planned use of the Platform for the duration of the Term. 
  • Licensee’s Responsibilities. 
    2.1 Licensee will: (a) be responsible for procuring all hardware and software necessary to use the Platform for the Evaluation; (b) run and test the Platform during the entire Term; (c) assist Active Estimating with the determination and resolution of problems associated with the Platform, which may include collecting and furnishing data to Active Estimating; and (d) provide Feedback, as set forth below.

    2.2 Feedback. Licensee will provide all material feedback regarding the Platform to Active Estimating, including without limitation usability, bug reports, general experience of Licensee with the Platform and comprehensive test results during the Evaluation (collectively and separately, “Feedback”). Feedback will be provided orally and in a written summary on a periodic basis (with the Parties to reasonably agree on the frequency) and both Parties agree to set up a mutually agreeable time to exchange Feedback.
  • Proprietary Rights. 
    3.1. Platform. Active Estimating will retain all right, title and interest in and to the Platform and all Intellectual Property therein and Licensee will not take any action inconsistent with such title and ownership. Licensee will not have any ownership interest in any element, segment or component of the Platform. “Intellectual Property” means all patent, copyright, trademark, trade secret or any other industrial or intellectual property rights. Active Estimating will be the sole owner of all right, title and interest in and to all improvements to the Platform, including without limitation any improvement made as a result of any Feedback.

    3.2. Platform License. Subject to the terms and conditions contained herein, Active Estimating grants Licensee and Licensee accepts, a non-exclusive, non-transferable license (without the right to sublicense) to use and test the Platform solely in the Territory, for the sole purpose of evaluating the Platform and providing Feedback. Licensee is not granted any rights to distribute or otherwise disclose the Platform, any portion or component of the Platform or any information regarding the Platform under this Agreement. 

    3.3. License Restrictions. As a condition of the Platform license granted by Active Estimating, Licensee will not, directly or indirectly: (a) 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 Platform; (b) modify, translate or prepare derivative works of the Platform; (c) use any Active Estimating information or the Licensee Output (as defined below) for purposes of training, validation of, testing of, or any other development of, any artificial intelligence or other machine learning technologies; (d) sublicense, rent, lease, lend, use or provide access to the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (e) remove any proprietary notices or labels from the Platform or any Active Estimating software or documentation; (f) publish or disclose to any third party any evaluation of the Platform; (g) post, send, process or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including violating any third party’s rights, using the Platform; (h) use the Platform to perform any activity which does or may violate any applicable law, or that is or may be, directly or indirectly, harmful, threatening, abusive, harassing, tortious or defamatory, or to perform any activity which violates the rights of any third party (i) interfere with or disrupt the integrity or performance of the Platform; or (j) permit, authorize or facilitate any of the foregoing.

    3.4. Ownership of Input and Output: Subject to the rights retained in accordance with Section 3.1: (a) Active Estimating acknowledges and agrees that Active Estimating makes no claim to any rights to any information or other content, data or information that Licensee uploads to or processes on or through to the Platform in the course of using the Evaluation (“Licensee Input”) or output generated by the Platform from Licensee Input
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  • Fees. Licensee will pay to Active Estimating the Fees, if any, as set forth above. Licensee will be responsible for any sales, use, goods and services, value added or similar transaction taxes are added to the Fees.
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  • Termination. 
    5.1. Termination.     This Agreement may be terminated at any time for any or no reason by either Party upon at least fifteen (15) days’ notice to the other Party.

    5.2. Effects of Termination. Upon expiration or termination of this Agreement, Licensee will have no further right to use or test the Platform, and will destroy any parts of the Platform in Licensee’s possession. Each Party will promptly return or destroy any Confidential Information of the other Party in its possession or control. Licensee will certify in writing to Active Estimating within ten (10) days following termination or expiration that Licensee has complied with this Section 5.2. Accrued obligations and Sections, 4(Fees), 6 (Confidentiality), 7 (Disclaimer of Warranty), 8 (Infringement Indemnification), 9 (Indemnification by Licensee), 10(Limitations on Liability), 11 (Compliance with Laws), 12 (Notices), 13 (General Provisions) and this Section 5.2 will survive any termination or expiration of this Agreement according to their terms.
  • Confidentiality. 
    6.1. Confidential Information.     Licensee agrees that in order to further the performance of this Agreement, each Party may disclose to the other Party certain confidential or proprietary information which may be identified as such in writing or may reasonably be considered confidential (“Confidential Information”). Confidential Information includes: (a) in the case of Active Estimating, the Platform, related documentation, all Feedback, and the terms of this Agreement; and (b) in the case of Licensee, Licensee Input and Licensee Output.

    6.2. Protection of Proprietary Information. Licensee and Active Estimating each agree: (a) to protect the confidentiality of the other Party’s Confidential Information with at least the same degree of care that it utilizes with respect to its own similar proprietary information, but in no event less than reasonable and customary care for such materials, including without limitation agreeing; and (b) not to publish, disclose, or divulge to any third person any Confidential Information of the disclosing Party. The obligations set forth in Section 6.2 will continue until five (5) years following the disclosure of the applicable Confidential Information and will not apply to information that: (i) is or becomes generally available to the public; (ii) was in the receiving Party’s possession or known by the receiving Party prior to receipt from the disclosing Party; or (iii) was independently developed without use of any Confidential Information of the disclosing Party. In addition, the receiving Party may disclose Confidential Information of the disclosing Party as required by applicable law or court order, or to protect its rights, including as evidence in litigation.
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  • Disclaimer of Warranty. THE PLATFORM IS BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND ACTIVE ESTIMATING HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, INFORMATIONAL CONTENT, INTERFERENCE WITH ENJOYMENT OR THAT THE PLATFORM IS ERROR-FREE OR FREE FROM DEFECTS. 
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  • Infringement Indemnification.
    8.1     Active Estimating will indemnify and hold harmless Licensee from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claim that the Platform infringe a valid U.S. patent, copyright or other intellectual property right of a third party, provided that: (a) Licensee provides Active Estimating prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith; and (b) Active Estimating will have sole control and authority with respect to the defense, settlement or compromise thereof. Should the Platform become or, in Active Estimating’s opinion, be likely to become the subject of an injunction preventing its use as contemplated herein, Active Estimating may procure for Licensee the right to continue using the Platform, replace or modify the Platform to become non-infringing, terminate Licensee’s license to the Platform. The foregoing indemnification obligations will not apply with respect to any claim based on: (i) use of the Platform by Licensee in combination with products or software not provided by Active Estimating; or (ii) any modification, alteration or enhancement of the Platform not created by or for Active Estimating. THE FOREGOING STATES THE ENTIRE LIABILITY OF ACTIVE ESTIMATING WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY BY THE PLATFORM OR ANY PART THEREOF OR BY ITS OPERATION.

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  • Indemnification by Licensee. Licensee will indemnify and hold harmless Active Estimating from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claim by a third party relating to Licensee’s breach of this Agreement or Licensee’s negligence, fraud or willful misconduct, provided that (a) Active Estimating provides Licensee prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (b) Licensee will have sole control and authority with respect to the defense, settlement or compromise thereof.
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  • Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW: (a) ACTIVE ESTIMATING’S LIABILITY FOR DAMAGES TO LICENSEE FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WILL NOT EXCEED THE AMOUNTS PAID TO ACTIVE ESTIMATING HEREUNDER. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF SECTION 3.3 OR 6; AND (b) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, PROFITS OR USE OF THE PLATFORM, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PLATFORM.
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  • General Provisions.
    11.1 Compliance with Laws. Licensee will comply with all applicable laws with respect to the Platform or the use thereof, and the performance by Licensee of its obligations hereunder.

    11.2 Notices. Any notice or communication from one Party to the other will be in writing and either personally delivered or sent via certified mail, postage prepaid and return receipt requested addressed, to such other Party at the address specified above or such other address as either Party may from time to time designate in writing to the other Party. No change of address will be binding upon the other Party until written notice thereof is received by such Party at the address show herein. All notices will be in English and will be effective upon receipt. 

    11.3 Publicity. Licensee agrees that Active Estimating may issue a news release or other public announcement relating to the performance of the Platform which may include Feedback or other results of the Evaluation without identifying Licensee. Subject to the immediately preceding sentence, Licensee and Active Estimating will not issue any news release or other public announcement relating to this Agreement, without express consent from the other Party.

    11.4 Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement or delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege by the other Party will not be construed as a waiver of any succeeding breach of the same or any other provision.

    11.5 No Agency; Independent Contractors; Third Party Beneficiaries. Nothing contained in this Agreement will be deemed to imply or constitute either Party as the agent or representative of the other Party, or both Parties as joint ventures or partners for any purpose. Except for the Parties, this Agreement is not intended to create any right or cause of action in or on behalf of any other person or entity.

    11.6 Governing Law. This Agreement will be governed by and construed in accordance with the Laws of the State of California, USA without regard to its conflict of Law provisions. Notwithstanding the foregoing,because a breach of Section 3.2 or 6 may irreparably harm a Party in a manner that may not be adequately compensated by monetary damages, each Party will, without limiting its other rights or remedies, be entitled to seek equitable relief, including without limitation injunctive relief, without posting a bond therefor in any court of competent jurisdiction.

    11.7 Entire Agreement; Amendment. This Agreement and the Exhibit attached hereto constitute the entire agreement between the Parties with regard to the subject matter hereof. No consent, modification or change of any term of this Agreement will bind either Party unless in writing signed by both Parties. Captions and headings contained in this Agreement have been included for ease of reference and convenience and will not be considered in interpreting or construing this Agreement. This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by Licensee.