Terms and Conditions of Service

These Terms of Service ("Agreement") apply to the solutions and services provided by SiteAware Inc. (“SiteAware”) to customers who signed a written statement of work with SiteAware (“Customer” and “Purchase Order”, respectively):

1. Services.

SiteAware will provide Customer with Digital Construction Verification services, all as further detailed in the applicable Purchase Order (the “Services”). The different types and packages of Services are set forth in Exhibit A hereto. Additional Services not defined in Exhibit A may be defined in an Annex to the Purchase Order.

2. Right to Use the Solution.

Subject to the terms and conditions of this Agreement, SiteAware grants Customer, and Customer accepts a non-exclusive, non-transferable, non-sublicensable, limited right to use SiteAware's online DCV repository ("Solution"), for its intended use internally during the term set forth in the Purchase Order, pursuant to the terms and conditions set forth in SiteAware’s Terms of Use available at: https://www.siteaware.com/terms-of-use.

3. Warranties and Representations.

Each party hereby warrants and represents that it is authorized to enter into this Agreement. 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 SiteAware 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.

4. Payment.

In consideration for the Services and use of the Solution Customer shall pay SiteAware the fees set forth in the Purchase Order. Any reference in the Purchase Order to “Construction Volume” shall mean the aggregate annual dollar value of the construction work performed or planned for all projects for which Customer intends to use the Services. The Purchase Order shall set forth the service period and amount of Construction Volume purchased by Customer. At the end of each fiscal year during the term and upon termination or expiration, the actual Construction Volume shall be calculated and the fees will be adjusted accordingly, however, if the actual Construction Volume for any given fiscal year is lower than the Construction Volume set forth in the Purchase Order by more than ten percent (10%) then the fees shall be calculated based on ninety percent (90%) of the Construction Volume that is set forth in the Purchase Order regardless of the actual amount. The fees are exclusive of sales tax or other taxes, which will be borne by Customer (except for taxes on SiteAware’s income). Without prejudice to its other remedies, SiteAware 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.

5. Audit.

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, SiteAware 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 SiteAware or its auditors in any audit or investigation.

6. Confidential Information; Personal Information.

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 SiteAware 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.

7. Privacy.

Our privacy policy is available at: https://www.siteaware.com/privacy-policy SiteAware may change the privacy policy at its discretion, in the event of a material change SiteAware shall notify Customer.

8. Ownership.

8.1. The footage recorded on Customer’s construction site and reports derived therefrom shall be owned by Customer.

8.2. Notwithstanding any other provision to the contrary, the Solution and methods of performing the Services, SiteAware Confidential Information and all improvements, enhancements and derivatives of any of the foregoing and all intellectual property rights thereto ("SiteAware IPR") are exclusively owned by SiteAware and/or its licensors. All feedback and suggestions provided to SiteAware regarding the Solution or the Services shall be deemed as SiteAware IPR. This Agreement does not convey to Customer any right, title or interest in the SiteAware IPR, other than the revocable and limited right to use the Solution as set forth in Section 2 above.

9. 1. Indemnification.

9.1. SiteAware 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”). SiteAware 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. 

9.2. Customer shall defend SiteAware 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 SiteAware harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.

9.3. 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 indemnifying party; and provide reasonable assistance in the defense at indemnifying party’s expense.

10. 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. SITEAWARE 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.

11. Limitation of Liability.

EXCEPT FOR CLAIMS ARISING FROM BREACH OF CONFIDENTIALITY OR THE INDEMNIFICATION OBLIGATION HEREIN, IN NO EVENT SHALL SITEAWARE 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, SITEAWARE'S AND/OR ITS AFFILIATE'S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SITEAWARE HEREIN DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

12. Publicity.

Either party may use the other party’s name and logo on its website and other marketing materials and presentations in order to refer to this engagement.

13. Term and Termination.

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 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. Each party may terminate this Agreement in the event of breach by the other party upon a thirty (30) days' notice, unless the breach is cured during the notice period.  Upon termination or expiration of this Agreement the right granted to Customer in this Agreement shall expire and Customer shall cease use of the Solution and immediately delete or return, at SiteAware’s discretion, all Confidential Information. Notwithstanding the termination or expiration of this Agreement, Sections 3-6 and 8-14 shall survive and remain in effect in perpetuity. SiteAware shall retain Customer’s reports and 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 SiteAware may delete the data. Customer may extend the backup retention period by purchasing additional periods.

14. General.

(i) This Agreement and the Purchase Order is the entire agreement between Customer and SiteAware in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) 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; (iii) SiteAware 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; (iv) neither party may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement to any third party without the prior written consent of the other party. Any unauthorized assignment will be void and of no force or effect. Notwithstanding the foregoing, SiteAware may assign and transfer all of its rights and obligations herein in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets; (v) unless otherwise expressly provided, 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 SiteAware, any rights, remedies or other benefits under or by reason of the Agreement; (vi) no failure or delay by either party in exercising any right, power or remedy shall operate as a waiver thereof. Waivers must be explicit and in writing.

SiteAware Terms and Conditions - Exhibit A

This Exhibit is Applicable for Concrete Buildings

 

Core DCV

 

For each concrete slab pour, SiteAware DCV verifies the work performed by trades to construct structural slabs and their adherence to construction documents in terms of layout, count, and dimensions. Actionable verification information is created in real-time highlighting any potential deviations and omissions, and a high-resolution As-Built Documentation is provided as a record for future reference.

 

The service can verify the following types of elements:

  • Slab edge layout

  • PT tendon layout, count, and anchor points

  • Column/wall layout, dimensions 

  • Openings/blockouts layout, dimensions

  • Slope verification of ramps

  • Embeds (façade and structural) count, layout, dimensions

  • MEP/FP (sleeves, drains, risers, piping, conduits, boxes, chases) layout, count, dimensions

 

SiteAware works to adjust the typical data collection schedule to suit the project within the limitations of scan and processing times.

 

Schedule Option Type 1 - Projects with Morning pours

Pre pour verification

Data Capture: Morning of the day before the pour

Delivery time:  Same day by lunchtime

Work in Progress verification

Data Capture: End of workday, the day before the pour

Delivery time:  Following morning

Schedule Option Type 2 - Projects with Evening/Night pours

Pre pour verification

Data Capture: End of work the day before the pour

Delivery time:  Day of pour by opening of site

Work in Progress verification

Data Capture: Afternoon of the day of the pour

Delivery time:  2 hours before the pour

Shell DCV

Shell DCV provides verification and documentation of facade installation.  Facades work stages are verified and synthesized into high-resolution inspection reports. Actionable verification information is created, highlighting insights into workmanship and warranty adherence and enabling observation tracking throughout construction and as final documentation.

 

The service can verify the following types of elements: 

  • Curtainwall and storefront system glazing, mullion, and gasket installation and workmanship

  • Masonry/Stone installation and workmanship of panel, joints, weeps 

  • Vapor barrier, flashing, and sealant installation and workmanship (at relevant stages)

  • Metal panels and metal trim/coping installation and workmanship

  • Finishes including metal rainscreen wall system, louvers, and decorative/steel guardrail installation and workmanship

 

SiteAware will work with the customer to adjust the typical scheduling to suit this project. This process typically begins when substrate preparation of the façade begins and typically continues on a bi-weekly basis.

 

Interior DCV – Partitioned Units

 

Interior DCV service verifies and documents conformance of interior layout within the residential units of roughed-in walls and required clearances as defined in the plans. The service is offered at the roughed-in stage of the interior buildout (MEP roughed in and wall framing in place).

 

The service can verify the following types of elements: 

  • Wall layout and dimensions

  • Door opening layout and size

  • ADA/Fair Housing clearances maintained with wall layout

  • Layout of roughed-in MEP sleeves, boxes, cutouts in the slab and in the deck overhead

 

SiteAware will work with the customer to adjust the data capture timing. This process typically requires a minimum scanning of 5 units per visit - delivery within 2 business days.

SiteAware Terms and Conditions - Exhibit A 

This Exhibit is Applicable for Wood Frame Buildings

Core DCV

 

For each concrete slab pour, SiteAware DCV verifies the work performed by trades to construct structural slabs and their adherence to construction documents in terms of layout, count, and dimensions. Actionable verification information is created in real-time highlighting any potential deviations and omissions, and a high-resolution As-Built Documentation is provided as a record for future reference.

 

The service can verify the following types of elements:

  • Footing and foundation wall layout, dimensions

  • Slab edge, thickened slab layout

  • PT tendon layout, count, and anchor points

  • Openings/blockouts layout, dimensions

  • MEP/FP (sleeves, drains, risers, piping, conduits, boxes, chases) layout, count, dimensions

  • Anchors and hold-down attachment system layout, count

 

SiteAware works to adjust the typical data collection schedule to suit the project within the limitations of scan and processing times.

Schedule Option Type 1 - Projects with Morning pours
Pre pour verification

Data Capture: Morning of the day before the pour

Delivery time:  Same day by lunchtime

Work in Progress verification

Data Capture: End of workday, the day before the pour

Delivery time:  Following morning

Schedule Option Type 2 - Projects with Evening/Night pours

Pre pour verification

Data Capture: End of work the day before the pour

Delivery time:  Day of pour by opening of site

Work in Progress verification

Data Capture: Afternoon of the day of the pour

Delivery time:  2 hours before the pour

Shell DCV

 

Shell DCV provides verification and documentation of facade installation.  Facades work stages are verified and synthesized into high-resolution inspection reports. Actionable verification information is created, highlighting insights into workmanship and warranty adherence and enabling observation tracking throughout construction and as final documentation.

 

The service can verify the following types of elements: 

  • Punched window and storefront glazing and frame installation and workmanship

  • Masonry veneer, control joints, mortar joints, weeps installation and workmanship 

  • Stucco/EIFS finish, detailing, control joint installation and workmanship

  • Fiber cement siding and panel installation and workmanship

  • VB/Weather resistant barrier, flashing, and sealant installation and workmanship (at relevant stages)

  • Metal trim/coping installation and workmanship

  • Finishes including louvers, MEP vent/boxes, and guardrail installation and workmanship

 

SiteAware will work with the customer to adjust the typical scheduling to suit this project. Two inspections will be done per building - once at the “dried-in” phase and once at the finishes/punch list phase. Reports will be delivered within three business days from the scan date.

 

Interior DCV

 

Interior DCV service verifies and documents conformance of interior layout within the residential units of roughed-in walls and required clearances as defined in the plans. The service is offered at the roughed-in stage of the interior buildout (MEP roughed in and wall framing in place).

 

The service can verify the following types of elements: 

  • Wall layout and dimensions

  • Door opening layout and size

  • ADA/Fair Housing clearances maintained with wall layout

  • Layout of roughed-in MEP sleeves, boxes, cutouts in the slab and in the deck overhead

 

SiteAware will work with the customer to adjust the data capture timing. This process typically requires a minimum scanning of 5 units per visit - delivery within 2 business days.