1. THE PLATFORM 
1.1. This Agreement governs Customer’s access to and use of the Active Estimating AI-powered construction cost estimation platform, as further described on the Active Estimating website at https://activestimating.com (the “Platform”).

1.2. Subject to the terms of this Agreement, Active Estimating hereby grants to Customer and its Users, during the Term, a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Platform for customers internal business purposes, including to generate Customer Output in connection therewith.

1.3. The Platform includes functionality and tools designed to enable Customer and its Users to submit construction project details to the Platform to generate construction cost estimates (“Estimates”) based on such information or other content, data or information that Customer or its Users upload to or process on or through to the Platform in the course of using the Platform and Services (“Customer Content”) and, if applicable, to incorporate such automations into Customer’s information technology systems. The Estimates and other content generated and produced by Customer and its Users through the Platform are referred to herein as the “Customer Output.” To the extent that any Active Estimating IP (as defined below) or other content that is not Customer Content made available through the Platform (collectively, “Active Estimating Content”) are incorporated into the Customer Output using the Platform, Active Estimating grants Customer a non-exclusive, royalty-free, perpetual, worldwide, non-transferable, non-assignable and non-sublicensable right and license to use such Active Estimating Content or other content solely as integrated into the Customer Output.

1.4. Active Estimating will use commercially reasonable efforts to assist Customer with configuration and optimization of the Platform to facilitate Customer’s use of the Platform for its business purposes and to make the Platform available to Customer and its Users during the Term. Active Estimating may require each of Customer’s authorized users (each, a “User”) to create and use a separate username and password to access and use the Platform (“User Credentials”). Active Estimating may also authorize a Customer account manager to create and issue User Credentials to each User and assign to such User an applicable set of privileges with respect to the Platform.

1.5. Active Estimating may utilize subcontractors and subprocessors in connection with the activities contemplated by this Agreement including processing Customer Content and generating Customer Output.

1.6. Customer acknowledges and agrees that Active Estimating may change or update the features and functionality of the Platform and Services, including the catalogue pre-automated workflows made available through the Platform, from time to time in its sole discretion.

2. CUSTOMER RESPONSIBILITIES
2.1. Customer will be responsible for the accuracy, completeness, and legality of any content, data, databases or information that Customer or its Users uploads to or processes on or through to the Platform in the course of using the Platform and Services (the “Customer Content”). Customer will be responsible for obtaining any third-party consent, licenses, or other rights necessary to process, store or otherwise use any Customer Content.

2.2. Customer 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 or any Active Estimating software used in providing the Platform; (b) modify, translate or prepare derivative works of the Platform, or any Active Estimating software, documentation or data; (c) use any Active Estimating Content or the Customer Output 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 (other than as integrated with Customer’s services to provide Customer’s services to its own end customers); (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 or Services; (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.

2.3. Customer acknowledges and agrees that the Platform is not a storage service and Customer is solely responsible for backing up all Customer Content and any Customer Output. Active Estimating does not warrant that Customer Content, Customer Output or any related materials will be available for any period of time following the end of the Term, provided that Active Estimating will use commercially reasonable efforts to retain and make available any Customer Content and Customer Output in its control for at least one (1) week following the end of the Term.

3. CONFIDENTIALITY AND PRIVACY
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial, or other confidential information relating to the Disclosing Party’s business (“Confidential Information”). Confidential Information of Active Estimating includes the terms of the Order Form and any non-public information regarding features, functionality and performance of the Platform. Confidential Information of Customer includes the Customer Content and Customer Output. The Receiving Party agrees: (a) to take precautions to protect Confidential Information of the Disclosing Party consistent with the precautions it takes for its own Confidential Information of a similar nature, but at least reasonable precautions, and (b) not to publish, disclose, or divulge to any third person any Confidential Information of the Disclosing Party.

3.2. The obligations set forth in Section 3.1 will continue until five (5) years following the disclosure of the applicable Confidential Information and will not apply to information that: (a) is or becomes generally available to the public; (b) was in the Receiving Party’s possession or known by the Receiving Party prior to receipt from the Disclosing Party; or (c) 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.

3.3. To the extent applicable, Active Estimating’s privacy policy available on the Active Estimating website at https://activestimating.com is incorporated herein by reference.

4. INTELLECTUAL PROPERTY RIGHTS
4.1. As between Customer and Active Estimating, Customer will own all right, title and interest in and to the Customer Content and Customer Output. Customer grants Active Estimating a royalty-free, non-exclusive, perpetual, irrevocable license to use the Customer Content: (a) to provide the Services; (b) to exercise its rights hereunder; and (c) for the purposes set forth in this Section and Section 4.4. Active Estimating will own all right, title and interest in and to: (i) the Platform and any Active Estimating software and documentation used in providing or related to the Platform, and all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other technology developed by or for Active Estimating in connection with the Platform; and (iii) any intellectual property rights in or related to any of the foregoing (the foregoing (i), (ii) and (iii), collectively, “Active Estimating IP”) Active Estimating and its third party licensors will also own all right, title, and interest in and to the Active Estimating pre-automated workflow libraries.

4.2. Active Estimating has the right to collect and analyze data relating to provision, use and performance of the Platform and Services, including by Customer and its Users, and Active Estimating may use such data to improve the Platform and Services, including through the use of automatic or machine learning, and for other development, diagnostic and corrective purposes in connection with the Platform and Services.

4.3. Customer acknowledges that the Platform and Services, and all intellectual property rights therein are the sole and exclusive property of Active Estimating or its licensors. All inventions, works of authorship or other developments conceived, written or otherwise generated by or for Active Estimating, whether solely or jointly, related to the Platform and Services are the sole property of Active Estimating.

4.4. Customer hereby grants to Active Estimating a perpetual, irrevocable, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, non-exclusive license to suggestions, comments or other feedback regarding the Platform and Services, to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, and otherwise exploit any such suggestion, comment or other feedback.

4.5. Except for the express license set forth in this Agreement, this Agreement does not grant to Customer any license, by implication, estoppel or otherwise.

5. PAYMENT OF FEES
5.1. Customer will pay Active Estimating the Fees as set forth in the applicable Order Form. Except as otherwise set forth in an Order Form, Configuration Fees are payable upon the Effective Date. The Services Fees are payable upon the Effective Date on a recurring basis as set forth in the applicable Order Form. Fees will be charged to Customer’s payment method periodically as set forth in the Order Form. Active Estimating may change the Fees for any Renewal Term by providing Customer notice (which may be sent by email) at least sixty (60) days prior to the end of the then-current Initial Term or Renewal Term. Any taxes imposed based on Customer’s use of the Platform and Services or payment of the Fees, other than taxes on the income of Active Estimating, will be for the account of Customer.

5.2.
Active Estimating may use payment processor services to bill and/or facilitate processing of Fees. By submitting payment account information, Customer grants to Active Estimating and its payment processor the right to store and process Customer’s information with the third-party payment service, which may change from time to time. Customer agrees that during the Term, Active Estimating may charge and the payment processor may pay to Active Estimating any one time or periodic Fees as they become due. Customer agrees that Active Estimating will not be responsible for any failure of the third party payment processor to adequately protect customer information. Any payment processor services will be subject to the payment processor’s separate terms and conditions in addition to this Agreement. Customer agrees that Active Estimating may change the third-party payment service and move Customer’s information to other service providers.

5.3.
Active Estimating reserves the right to discontinue access to the Platform and suspend the performance of any Services until all past due invoices are paid in full. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction. Customer will pay a late charge of one percent (1%) per month or the highest amount permitted by applicable Law, whichever is less, on any Fees or costs or expenses not paid by the due date. Unless otherwise identified in an Order Form, all Fees are stated in, and all Fees and reimbursement of costs or expenses must be paid in, United States dollars.

6. TERM AND TERMINATION
6.1. The term of this Agreement is as set forth in the Order Form.

6.2. Either party may terminate this Agreement upon notice to the other party if the other party materially breaches any of the terms or conditions of this Agreement and does not remedy such breach within thirty (30) days following receipt of notice of such breach. Without limiting Section 5.3, Active Estimating may terminate this Agreement upon notice to Customer in the event any amounts payable by Customer hereunder are more than ten (10) days past due. Active Estimating will not be obligated to refund any Fees.

6.3. Accrued obligations, and the following Sections of this Agreement, will survive any termination thereof: 1.3, 2, 3, 4.3, 4.4 and 5 through 11.

7. INDEMNIFICATION
7.1. Subject to Sections 7.2 and 7.4, Active Estimating agrees to defend, indemnify and hold harmless Customer and its Affiliates and their respective principals, partners, directors, officers, stockholders, and representatives, and the successors and assigns of each of the foregoing, for, from and against any and all losses, damages, fines, penalties, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants and other experts and professionals) (collectively, “Losses”) suffered or incurred by any of them directly or indirectly arising from or in connection with any third party claims based upon any allegations that the Platform, Services or Active Estimating Content infringes, misappropriates, or violates, directly or indirectly, the intellectual property rights, rights of publicity, or privacy rights of any third party. If Customer’s use of the Platform is, or in Active Estimating’s opinion is likely to be, found to infringe, Active Estimating may, in its sole discretion: (a) modify the infringing element of the Platform to be non-infringing; (b) procure for Customer the right to continue using the Platform; or (c) terminate the affected Order Form and refund to Customer the pro rata portion of any prepaid Fees associated with the Platform for any unused credits. THIS SECTION 7.1 SETS FORTH ACTIVE ESTIMATING’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE PLATFORM OR SERVICES.

7.2. The defense and indemnification obligations of Active Estimating shall not apply to the extent the alleged infringement arises out of: (a) use of the Platform or Service by Customer in combination with products, technology, software, or content not provided by Active Estimating; (b) any modification, alteration or enhancement of any Active Estimating Content not created by or on behalf of Active Estimating; or (c) any matter for which Customer is obligated to indemnify Active Estimating under Section 7.3.

7.3. Subject to Section 7.4, Customer hereby agrees to defend, indemnify and hold harmless Active Estimating and its Affiliates and their respective principals, partners, directors, officers, stockholders, and representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with any third party claims arising from or related to: (a) any failure by Customer to comply with any applicable laws; or (b) any allegations that any Customer Content or Customer Output (other than Active Estimating Content integrated therein in accordance with this Agreement) infringes, misappropriates, or violates, directly or indirectly, the intellectual property rights, rights of publicity, or privacy rights of any third party.

7.4.
As a condition to the indemnity obligations of a party hereunder, the indemnified party shall: (a) provide prompt notice of any indemnifiable claim; (b) tender the defense of such claim to the indemnifying party at the indemnifying party’s request; (c) cooperate with the indemnifying party in the defense of such claim at the indemnifying party’s expense; and (d) not settle or compromise any such claim without the consent of the indemnifying party. Customer will immediately inform Active Estimating as soon as Customer becomes aware of any threatened or actual claim by any third party relating to the Platform or Services.

8. WARRANTY AND DISCLAIMER
8.1. Customer represents and warrants that Customer has the right to provide the Customer Content to Active Estimating for the purposes of this Agreement.

8.2. Customer acknowledges and agrees that any use of or reliance on the Platform and Services is at Customer’s own risk. Without limiting the foregoing, Active Estimating does not guarantee the accuracy or usefulness of any Customer Output or other information generated through use of the Platform or Services and will not be responsible for any use by Customer of the Customer Output.

8.3. Customer acknowledges that, notwithstanding any security precautions deployed by Active Estimating, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform and Customer Content. Active Estimating cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.

8.4. THE PLATFORM, THE SERVICES, AND ANY RESULTS THEREFROM AND ANY CUSTOMER OUTPUT ARE PROVIDED “AS IS” AND ACTIVE ESTIMATING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. ACTIVE ESTIMATING DOES NOT WARRANT THAT THE PLATFORM OR THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR FREE OR WILL INTEGRATE WITH SYSTEMS OF CUSTOMER OR ANY THIRD PARTY.

9. LIMITATION OF LIABILITY
‍TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTIVE ESTIMATING AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER CONTENT OR DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR LOSS OF PROFITS OR BUSINESS; (B) FOR ANY EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, MULTIPLE, PUNITIVE OR OTHER INDIRECT DAMAGES; (C) FOR ANY MATTER BEYOND ACTIVE ESTIMATING’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO ACTIVE ESTIMATING UNDER THIS AGREEMENT, WHETHER OR NOT ACTIVE ESTIMATING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. ARBITRATION
10.1. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”), including, if appropriate, the International Commercial Arbitration Supplementary Procedures.

10.2.There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.

10.3. The seat or place of arbitration shall be San Francsico County, California, USA. The arbitration shall be conducted and the award shall be rendered in the English language. The award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable.

10.4. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.

10.5. Notwithstanding anything to the contrary in this Section 10, Customer and Active Estimating shall each have the right to apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other similar interim or conservatory relief, as necessary, pending resolution under the arbitration procedures set forth in this Section 10. Nothing in the preceding sentence shall be interpreted as limiting the powers of the arbitrator with respect to any dispute subject to arbitration under this Agreement.

11. MISCELLANEOUS
11.1. 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.

11.2. This Agreement is not assignable, transferable, or sublicensable by Customer except with Active Estimating’s prior written consent.

11.3. 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. Any modification or other amendment of this Agreement must be in writing and signed by both parties, and any waiver of this Agreement must be in writing and signed by the party granting such waiver, except as otherwise provided herein. This Agreement also supersedes any pre-printed terms contained on any purchase order or similar document issued by Customer and any such terms will have no force or effect.

11.4. 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 Active Estimating in any respect whatsoever.

11.6. 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 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 construed and interpreted in accordance with the internal laws of the State of California, USA without giving effect to the principles of conflicts of law thereof. Subject to Section 10, each party consents to the exclusive jurisdiction of federal or state courts located in the State of California, USA to resolve any dispute hereunder.

11.7. Except for Customer’s payment obligations, neither party shall be liable for failure of or delay in performing obligations set forth in this Agreement, and neither shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any causes beyond the reasonable control of such party. In such event, the affected party shall use commercially reasonable efforts to cure or overcome the same and resume performance of its obligations hereunder as soon as practicable.

11.8. Neither party is, or shall be deemed for any purpose to be, an employee or agent of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.

11.9. During the Term, Active Estimating may include Customer’s name and logo as a customer of Active Estimating, including on Active Estimating’s website. Customer may opt out of such inclusion at any time by notifying Active Estimating via email at hello@activeestimating.com.

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