CONSTROL- TERMS AND CONDITIONS

 

1.PREAMBLE; GENERAL DEFINED TERMS

1.1Preamble. These are the Terms and Conditions (the “T&Cs”) pertaining to the use, utilization and exploitation of the Services referred to in the Order Form (these T&Cs together with the Order Form shall be referred to herein as the “Agreement”).

              In the event of any inconsistency between these T&Cs and the Order Form, the provisions of the Order Form will prevail and govern. All captioned terms in These T&Cs shall have the meaning ascribed to them in the Order Form, and vice versa, unless specifically stated otherwise.

1.2General Defined Terms. The following terms shall have the meaning ascribed to them as follows:

              “Corporation” means CONSTROL INC., a company incorporated under the laws of the State of Pennsylvania, USA, together with its affiliates;

              “Customer” means the customer(s) referred to in the Order Form, to which the Order Form was issued;

              “Fees” means the consideration, compensations, fees and other payments payable to the Corporation as set forth in the Order Form;       

              “Order Form” means the Purchase Order / Proposal / Quote to which these T&Cs are attached and/or which refers to these T&Cs;

              “Parties” means the Corporation and the Customer (each, a “Party”)   

              “Services” means the services referred to in the Order Form, including the License (as defined herein) and other ancillary professional services;

              “Solution” means the Corporation’s proprietary unique technological platform for construction projects, focusing on groundbreaking BIM (Building Information Modeling) and BOQ (Bill of Quantities) solutions;.

               “Term” means the period of engagement referred to in the Order Form.

2.THE SERVICES; GRANT OF LICENSE; ACCOUNT & USERS

2.1Subject to the terms of this Agreement, during the Term (as defined below), the Corporation shall provide the Customer with the Services, which shall include: (i) the grant to the Customer of a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable (subject to the terms hereof) license to access and use the Solution and all documentation related thereto (by way of creation of an Account, as defined herein), to be utilized and exploited by Customer solely for its intended use cases (the “License” and the “Purpose”, respectively), and (ii) standard support services in accordance with the Corporations customary service level policies.

2.2For the purpose of using, utilizing and exploiting the Services, the Customer shall be required to register and create an account (the “Account”). The first user of the Account is automatically assigned as an Account-administrator (the “Admin”).

2.3When creating an Account or when added into an Account and creating a user profile (each, a “User Profile”), the Customer: (i) will provide accurate, complete, and current registration information; (ii) acknowledges that it is responsible to ensure that the Account-password remains confidential and secure; (iii) is and will remain fully responsible for all activities that occur under the Account, User Profile(s) and regarding the password, including the input of any information about or related to Customer or any User (as defined below), and any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Services; and (iv) undertakes to promptly notify the Corporation in writing upon becoming aware of any unauthorized access or use of the Account or any User Profile and any breach of this Agreement. The Corporation may assume that any communications received under any User Profile have been made by the Customer. The Customer will be solely responsible and liable for any losses, damages, liability and expenses incurred by it, by the Corporation or a third party, due to any unauthorized use of or access to the Account by either it or any other User or third party, whether or not acting on Customer’s behalf.

2.4The Customer understands and agrees that the Corporation may require it to provide information that may be used to confirm the Customer’s identity and help ensure the security of its Account and User Profile(s). In the event that the Customer or an Admin lose access to an Account or otherwise request information about an Account, the Corporation reserves the right to request any verification and/or information, including in the form of a release, as the Corporation may deem necessary in its sole discretion, before restoring or providing access to or providing information about such Account.

2.5An Admin may assign or add other Users as Admins, which possess important privileges and controls over the use of the Services and the Account, including, without limitation: (i) control Customer’s (and other Users) use of the Account; (ii) purchase, upgrade or downgrade Services; (ii) create, monitor or modify Users’ actions and permissions; (iii) manage the access to, control, remove, share posts or otherwise; (iv) assign certain privileges to such other Users; and (v) integrate or disable integration with third party services. The Admin(s) of an Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a decision or action of Customer.

2.6There are several types of Account users, such as guests, viewers, members and other types of users, all of whom are designated within the Services and referred to herein, collectively with the Admin(s) as “Users”. The features, functionalities and privileges available to the Users are determined by the respective user role. The Customer shall be responsible for ensuring that Users are assigned the appropriate user type. If Customer assigns Users not in accordance with the appropriate user type (for instance, assigning Users who are internal to Customer’s organization as a guest user, such as having guests with such organization’s email domain) then the Corporation shall have the right, in its sole discretion, and without derogating from any other remedy available hereunder, to reassign such user types as appropriate, impose additional restrictions and/or charge additional fees.

2.7The creation of User Profiles and addition of Users shall be permitted only with respect to Customer’s employees and agents, which are required to have access to the Services as part of their position, and which are duly authorized by the Customer to make such use (the “Personnel”). Customer shall not be entitled to create User Profilers for third parties, and/or add Users, which are not members of his Personnel.

2.8Subject to the provisions of the Order Form, the Customer shall not be entitled to create and maintain more than ten (10) active User Profiles.

2.9Customer is solely liable and responsible for understanding the settings, privileges and controls for the Services and for controlling whom Customer permits to become a User and what are the settings and privileges for such User, including without limitation, the right for a User to invite or add other Users (either paid or unpaid), the right to incur charges on the Account, the right to access, modify or share boards, etc. Customer is responsible for the activities of all of its Users, including order forms they may place, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of Customer’s Account, is deemed as an authorized action by Customer, hence Customer shall have no claim in this regard. A User, including Customer in its capacity as a User, shall be required to acknowledge these T&Cs.

2.10The Corporation reserves the right (however is not obligated) to update, upgrade or otherwise modify the Solution, at the Corporation’s sole discretion. The Corporation will provide the Customer with written notice of any material update, upgrade or modification.

2.11Nothing herein shall be deemed to prevent or restrict the Corporation’s ability to provide services similar to the Services, in whole or in part, to any other third parties and customers.

3.PILOT

3.1Subject to the Order Form and to the extent the Parties agreed upon a pilot of the Services (the “Pilot”), then, unless otherwise agreed between the Parties, the Pilot will be conducted only with respect to the first project ordered by the Customer, to the extent such is considered a new customer of the Corporation.

 

4.PAYMENT OF FEES; DISCOUNTS

4.1In consideration of the Services, the Customer will pay the Corporation the Fees.

4.2All payments will be made by Customer within 10 days of the end of each calendar month, with respect to such calendar month, against issuance of the applicable invoice.

4.3The Corporation reserves the right to change the Fees or applicable charges and to institute new charges and fees at the end of each 12-month period during the Term, upon thirty (30) days prior notice to Customer.

4.4Certain discounts may apply in respect of the Services, as shall be set forth in the Order Form or otherwise be agreed between the Parties in writing.

4.5VAT and/or any taxes applicable at the time of each payment shall be added to the Fee to which Corporation shall be entitled.

4.6Unpaid 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 the Services.

5.RESTRICTIONS AND RESPONSIBILITIES

5.1Customer will not, directly or indirectly, and will not permit anyone to: (i) 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 (including the License, the Account or the Solution provided thereunder); (ii) modify, translate, or create derivative works based on the Services (including the Solution); (iii) make the Services (including the Solution and the Account) available to any person other than Customer’s Personnel; provided, however, that Customer shall remain at all times fully liable for any breach and/or violation of this Agreement, including any misuse of the Services, by any members of the Personnel; (iv) use or exploit the Services for any other purpose other than the Purpose; (v) remove any proprietary notices or labels; (vi) sell or resell the Services; (vii) use the Services for malicious or illegal purposes, or otherwise in violation of applicable laws or regulations; (viii) attempt to breach the security of the Solution, circumvent, disable or otherwise interfere with security-related features of the Solution, perform any form of hacking of the Solution or attack the Solution in any way whatsoever; (ix) interfere with, circumvent, manipulate, impair or disrupt the operation, integrity, performance and/or functionality of the Solution; (x) use the Solution other than as permitted in this Agreement, work around or circumvent any technical limitations in the Solution or enable features or functionalities that are otherwise disabled or inaccessible; and/or (xi) take any action that would, or that would be reasonably likely to, subject the Solution to any freeware, open source or similar licensing or distribution models, including through linking.

5.2Customer will comply with, and will use the Services only in compliance with, applicable laws and regulations, including such laws related to data privacy and the transmission of technical or personal data. CUSTOMER ACKNOWLEDGES THAT THE CORPORATION EXERCISES NO CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED BY CUSTOMER OR THE PERSONNEL THROUGH THE SERVICES. Customer will indemnify and hold harmless the Corporation against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable 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. Although Corporation has no obligation to monitor Customer’s use of the Services, Corporation may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

5.3Customer shall be responsible for obtaining and maintaining, at its own expense, any equipment, hardware, tools, machinery, and ancillary services 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.

5.4Any timelines provided by the Corporation for project onboarding, configuration, or delivery are strictly conditional upon the Corporation’s timely receipt of all specifications, plans, and required materials from the Customer in a complete, accurate, and usable form. Delays in receiving complete materials or responses from the Customer shall proportionally extend the agreed timetable.

5.5Where the Customer requests updates to a project model resulting from changes in specifications, designs, or plans: (i) the Corporation shall provide an updated estimated delivery timeline; (ii) reasonable changes will be included within the Customer’s subscription fees; however (ii) where the scope of modifications exceeds what is commercially reasonable (in the Corporation’s sole discretion), such changes shall be charged separately and shall require a new written Order Form or amendment thereto to be accepted by the Customer.

6.CONFIDENTIALITY; PROPRIETARY RIGHTS

6.1Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose certain highly confidential information and data relating to the business and operation of the Disclosing Party. “Confidential Information” of the Corporation includes, without limitation, any and all confidential and proprietary information of, or concerning, the Corporation, this Agreement, the Services, the Solution, and the Corporation’s products, services, developments, designs, employees, agents, contacts, customers and suppliers, which has been or is in the future disclosed to or otherwise acquired by the Customer and/or the Personnel, including but not limited to any and all specifications, research, product plans, products, pricing, procedures, markets, inventions, patents or patent applications, processes, technical data, know-how, ideas, hardware, hardware configuration information, software, platforms, studies, marketing or financial data, documents, data, formulas, concepts, tests, drawings, applications, designs and trade secrets, methods, processes and related equipment, business operations and plans, notes, memoranda, summaries, analyses, compilations, and all embodiments of any of, and any other data or information (in whatever form), as well as improvements and know-how related thereto. “Confidential Information” of the Customer includes non-public data provided by Customer to Corporation, as to allow and enable the provision of the Services.

6.2The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Confidential Information, and at least the same degree of care that it takes to protect its own Confidential Information; and (ii) not to use (except as otherwise permitted herein), disclose or divulge to any third party any such Confidential Information, save for the disclosure of such Confidential Information to such Receiving Party’s employees and agents (and with respect to the Customer – the members of the Customer’s Personnel), only on a strict “need to know” basis, provided that such individuals are bound by confidentiality obligations in favor of the Disclosing Party, which are at least strict as the obligations set forth herein, and provided further, that the Receiving Party shall remain, at all times, liable for any Confidential Information of the Disclosing Party disclosed to or obtained by such Receiving Party’s individuals. 

6.3The Disclosing Party agrees that the foregoing shall not apply to any information that the Receiving Party can provide tangible evidence: (i) is or becomes generally available to the public, through no fault of the Receiving Party; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Confidential Information of the Disclosing Party; or (v) is required to be disclosed by law, regulation, judicial or administrative order or request by a governmental or other body authorized by law to make such request; provided, however, that the Receiving Party, if required to make such disclosure shall have given reasonably prompt notice to the Disclosing Party, to the extent permissible under applicable law, and shall disclose only the minimum information required to be disclosed as aforesaid.    

6.4Each Party shall retain all right, title and interest in and to its Confidential Information. Furthermore, Corporation shall own and retain all right, title and interest in and to (i) the Services (including the Solution) and any and all improvements, enhancements, modifications, upgrades, derivative works and feedback related thereto; (ii) any software, platform, applications, inventions or other technology developed in connection with the Services; and (iii) all intellectual property rights related to any of the foregoing. In addition, the Corporation shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancements requests, recommendations or other feedback provided by Customer relating to the Services.

6.5Notwithstanding anything to the contrary, the Corporation shall have the right to collect and analyze data and other information relating to the provision, use and performance of the Services and affiliated systems and technologies (including, without limitation, information concerning Customer’s Confidential Information and data derived therefrom) and Customer’s use of the Services, and Corporation will be free (during and after the Term) to: (i) use such information and data to improve and enhance its services (including the Services) and for other development, diagnostic and corrective purposes in connection with such services and other Corporation offerings; and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

6.6Further to the above, all content made available by the Services, including without limitation, the text, information, documents, descriptions, products, software, graphics, photos, and services (the “Materials”), and the trademarks, service marks and logos contained therein (“Marks”), is the sole and exclusive property of the Corporation and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. All other Marks apparent under the Services are the trademarks, service marks, or logos of their respective owners.

6.7The Customer hereby grants to the Corporation a non-exclusive, royalty-free right to use the Customer’s names, trademarks, logos and other marks, whether registered or not, for the purpose of providing the Services.

7.DATA PROTECTION [Note: Constrol to advise re data matters]

7.1Each Party shall comply with all applicable data protection and privacy laws in connection with its use or provision of the Platform, including, where applicable, the EU General Data Protection Regulation (GDPR), the Israeli Privacy Protection Law, and other relevant regulations.

7.2The Corporation shall implement appropriate technical and organizational measures designed to safeguard data against unauthorized access, accidental loss, alteration, or disclosure.

7.3Customer acknowledges that data may be stored or processed in servers located outside of the Customer’s jurisdiction. The Corporation shall ensure that any such transfer is performed under lawful mechanisms ensuring an adequate level of protection.

7.4In the event of a security incident affecting data, the Corporation shall use reasonable efforts to notify the Customer without undue delay and shall take required steps to mitigate its effects.

8.TERM AND TERMINATION

8.1This Agreement shall enter into effect as of the date of signature of the Order Form and shall remain in effect during the Term. Notwithstanding the foregoing, each Party shall be entitled to terminate this Agreement at the lapse of each 12-month period during the Term, by providing the other Party a prior written notice of at least 30 days.

8.2The above notwithstanding, and in addition to any other remedies it may have, the Corporation may, at its sole discretion, terminate this Agreement immediately, by written notice to Customer, upon the occurrence of any of the following: (a) a material breach by Customer or any member of the Personnel of any of the Customer’s obligations under this Agreement (including but not limited to Customer’s obligations to duly and timely pay the Fees or any part thereof), which was not cured within seven (7) days following the Corporation's notice with respect to the applicable breach; or (b) any act of moral turpitude by Customer, any member of the Personnel, or anyone on their behalf, or action by Customer, any member of the Personnel, or anyone on their behalf, to intentionally harm the Corporation.

8.3Upon expiration or termination of this Agreement for any reason whatsoever: (i) Customer shall immediately surrender to the Corporation all documents and information in its possession or disposal, as such may have been delivered to it and/or its Personnel during the Term or due to the provision of any of the services provided hereunder; (ii) all rights granted to the Customer hereunder (including the License, the Account, any and all further licenses, if any) shall forthwith terminate, expire, and immediately revert to the Corporation; and (iii) each Party shall complete any outstanding obligations towards the other Party which have accrued and remained outstanding prior to expiration or termination (unless the other Party waived such obligation by the first Party).

8.4The provisions set forth under Sections ‎‎4, ‎6, ‎7, ‎9, ‎10 and ‎11 of these T&Cs shall survive the expiration or termination of this Agreement, for any reason whatsoever.

9.WARRANTY AND DISCLAIMER

9.1The Corporation 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 Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Corporation or by third-party providers, or because of other causes beyond Corporation’s reasonable control. The Corporation shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.

9.2NOTWITHSTANDING THE ABOVE, THE CORPORATION DOES NOT REPRESENT OR 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 ARE PROVIDED “AS IS” AND THE CORPORATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRIOR TO USING ANY RESULTS, INFORMATION, INSIGHTS, ANALYSES, OR OUTPUT GENERATED BY THE SERVICES, THE CUSTOMER SHALL CONDUCT ITS OWN INTERNAL REVIEW AND VERIFICATION OF SUCH INFORMATION. THE CUSTOMER ACKNOWLEDGES THAT RESULTS AND DATA PROVIDED BY THE SERVICES ARE INFORMATIONAL AND INDICATIVE ONLY, AND SHALL NOT BE CONSTRUED AS PROFESSIONAL ADVICE, GUARANTEES, RECOMMENDATIONS, OR ASSURANCES OF ANY SPECIFIC OUTCOME.

10.LIMITATION OF LIABILITY

10.1THE CORPORATION SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY THE CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE). THE CORPORATION’S AGGREGATE LIABILITY FOR ALL DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 3 MONTHS PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.

10.2THE CORPORATION AND ITS AFFILIATES SHALL HAVE NO LIABILITY AND WILL MAKE NO REFUND, IN THE EVENT OF ANY DELAY, CANCELLATION, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND THEIR DIRECT CONTROL, AND THEY HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY.

11.MISCELLANEOUS

11.1Further Assurances. Each of the Parties shall perform such further acts and execute such further documents as may reasonably be necessary to carry out and give full effect to the provisions of this Agreement and the intentions of the Parties as reflected thereby.

11.2Severability. 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. 

11.3Assignment. This Agreement (including the License and the Account) is not assignable, transferable or sub-licensable by Customer except with the Corporation’s prior written consent. The Corporation may transfer and assign any of its rights and obligations under this Agreement without the Customer’s consent.

11.4Relations of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and Customer does not have any authority of any kind to bind the Corporation in any respect whatsoever. 

11.5Entire Agreement. This Agreement (together with its Exhibits) constitutes the full and entire understanding and agreement between the Parties with regard to the subject matters hereof and thereof, and shall supersede, in their entirety, any prior agreements or understandings with regard to the subject matters contained herein.

11.6Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the laws (but not the conflict of laws rules) of the State of New York, USA, and the competent courts of New York City, will have exclusive jurisdiction with respect to any dispute arising hereunder. No other court shall have jurisdiction over such matters.

11.7Statute of Limitation. CUSTOMER AGREES THAT ANY CAUSE OF ACTION THAT IT MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.

11.8Notices. 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. 

11.9Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which together shall constitute one and the same instrument.