CompanyCam Terms
and Conditions Agreement

These Terms and Conditions Agreement, including any Order Forms (collectively the ​“Agreement”), governs Customer’s use of the Services. This Agreement is between CompanyCam, Inc. (“CompanyCam”) and the customer contracting entity identified (a.) in an Order Form, or (b.) if no Order Form exists, the business entity associated with the billing account for the Services, as identified during account registration (“Customer”). CompanyCam and Customer may also be referred to herein individually as a ​“Party” or together as the ​“Parties.” Capitalized terms used but not otherwise defined herein have the respective meanings designated in Section 1. The ​“Effective Date” is the effective date set forth in the Order Form, or if no Order Form exists, the date Customer first accesses or uses the Services. 

This Agreement incorporates the CompanyCam Payments Terms and Conditions and Data Processing Addendum (“DPA”). In addition, CompanyCam’s Privacy Notice (“Privacy Notice”) contains information on how CompanyCam collects, uses, and shares personal information for its own purposes. The Privacy Notice is not a part of this Agreement and may be changed from time to time, but by agreeing to this Agreement, you acknowledge and consent to the collection, use, sharing, and disclosure of your personal information as described in the Privacy Notice, as may be modified from time to time. 

1. DEFINITIONS

1.1 ​“Affiliates” means an entity that controls, is controlled by, or is under common control of a Party, where ​“control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of the subject entity. 

1.2 ​“Authorized User” means any individual or agent authorized by Customer to access or use the Services. 

1.3 ​“Beta Service(s)” means CompanyCam services, features, or functionality that CompanyCam may make available to Customer that have not been made generally available to customers and have been designated as beta, pilot, limited release, preview, non-production, pre-release, or a similar designation. 

1.4 ​“Customer Data” means any content, data, information, personal information (as defined in the Privacy Notice), and other materials submitted by Customer or an Authorized User to the Services. Customer Data excludes Aggregated Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation, correction, or other feedback relating to the Services. 

1.5 ​“Data Protection Law” includes (without limitation) any federal or state data protection laws in effect and applicable to CompanyCam’s processing of personal information in the United States (including The California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. as amended by the California Privacy Rights Act). CompanyCam’s obligations to Customer under the DPA are only those express obligations imposed by applicable Data Protection Law that require that a ​“Business” and a ​“Service Provider” to have in place. Each party is responsible for fulfilling its respective obligations set out in applicable Data Protection Law. 

1.6 ​“Data Subject” means the identified or identifiable person to whom Customer personal information relates. 

1.7 ​“Export Control and Sanctions Laws and Regulations” means all applicable laws and regulations controlling or regulating the export, re-export, or in-country transfer of goods, technology, software, or services, or those that impose other trade or financial sanctions against targeted countries, territories, individuals, or entities, collectively including, but not limited to, all laws administered by the U.S. Department of State and its Directorate of Defense Trade Controls, the Office of Foreign Assets Control of the U.S. Department of the Treasury, and the U.S. Department of Commerce and its Bureau of Industry and Security. 

1.8 ​“Intellectual Property Rights” means all rights, title, and interest in all intellectual property, including patents, copyrights, trade secrets, mask works, trademarks, and other intellectual property rights of any sort throughout the world. 

1.9 ​“Installment Plan” means the payment schedule for the Fees and other fees, as applicable, that allow for periodic payments following a monthly or quarterly frequency. 

1.10 ​“Order Form” means an ordering document or an online order provided by email or through the Service interface specifying the parts of the Service to be provided by CompanyCam to Customer under this Agreement. 

1.11 ​“Services” means CompanyCam’s software-as-a-service, and all associated Updates, offered on a subscription basis by CompanyCam that includes jobsite documentation and productivity software as a service platform, including financial service, marketing, and related offerings. 

1.12 ​“Subscription” means the access to the Services purchased by Customer. 

1.13 ​“Subscription Term” means the entire period during which Customer is entitled to use the Services, including the initial term and any applicable renewal terms. 

1.14 ​“Updates” means all updates, enhancements, and other modifications that CompanyCam makes generally available, at no additional charge, to its customers of the Services. 

2. PROVISION OF THE SERVICES

2.1 Access to the Services. Subject to Customer’s compliance with this Agreement, CompanyCam shall make the Services available to Customer during the Subscription Term for Customer’s internal business use. CompanyCam may update the content, functionality, and user interface of the Services from time to time in its sole discretion. 

2.2 Protection of Customer Data. CompanyCam shall maintain the administrative, technical, and physical safeguards set out in Appendix B of DPA. Where Customer’s use of the Services includes the processing of Customer personal information, such use will be governed by the DPA, which may be updated from time to time by CompanyCam. Customer shall only provide to CompanyCam the minimum amount of personal information necessary to enable Customer to use the Services in accordance with this Agreement. Without limiting the generality of the foregoing, Customer acknowledges and agrees that CompanyCam does not process Customer Data picture or videos for purposes of identifying any individual. 

2.3 Beta Services. CompanyCam may make certain Beta Services available to Customer at no charge. Customer may elect, at its option, to participate in any Beta Service. Customer’s use of any Beta Service is subject to additional restrictions CompanyCam specifies. If Customer participates in a Beta Service, it agrees to test and provide ongoing feedback about the Beta Service. Beta Services are solely for Customer’s evaluation purposes and are subject to the use restrictions in Section 3.3 (“Restrictions”). Unless otherwise stated, Customer’s use of any Beta Service will end on the earlier of the date of such Beta Service’s commercial release or the date CompanyCam discontinues the Beta Service. CompanyCam may change or discontinue Beta Services at any time without notice or liability. CompanyCam may choose not to make Beta Services generally available. Beta Services are not ​“Services” and are provided ​“as is.” Any warranties or contractual commitments CompanyCam makes for other Services do not apply to Beta Services. CompanyCam and its Affiliates will have no liability or obligation for any damage or harm arising from or in connection with any Beta Service. 

2.4 Artificial Intelligence. From time to time, CompanyCam may introduce features and capabilities as part of the Services that utilize artificial intelligence, machine learning, or similar technologies (“AI Features”). While CompanyCam uses commercially reasonable efforts to reduce errors and omissions arising from use of AI Features, CompanyCam makes no warranties, express or implied, regarding the accuracy, reliability, or non-infringement of AI Features (including without limitation any outputs therefrom), and disclaims any liability for errors, actions, or omissions based on AI Features or Customer’s use thereof. Any content generated by AI Features is not reviewed by CompanyCam, and Customer is solely responsible for reviewing such content for accuracy before publishing or relying upon it. In addition, in certain jurisdictions, notice and/​or consent may be required from downstream individuals in the event AI Features are used in connection with the processing of personal information or personal data. Customer acknowledges and agrees that it is solely responsible for providing all required notices and obtaining all required consents in connection with its use of AI Features. 

3. USE OF SERVICES

3.1 Non-Exclusive License. CompanyCam hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement), revocable right to access and use the Services, pursuant to the terms of this Agreement, during the applicable Subscription Term. 

3.2 Usage Rights; Customer Responsibilities.Customer agrees to access and use the Services only for its own internal business purposes in accordance with this Agreement and any program rules or other documentation made available to Customer. Only Authorized Users are permitted to access and use the Services. Customer shall be solely responsible for (a.) Authorized Users’ compliance with this Agreement and any activities that occur as a result of Authorized Users’ access to the Services; (b.) the accuracy and quality of Customer Data, the means by which Customer acquired Customer Data, and obtaining appropriate usage rights with respect to Customer Data; (c.) maintaining the confidentiality of Customer usernames, passwords, and other account information or access credentials (as applicable); and (d.) ensuring Authorized Users use the Services only in accordance with this Agreement. Customer shall follow all requirements under applicable law, which may include providing notice and disclosures to Authorized Users and/​or Data Subject(s) that Customer personal information is subject to Customer’s own privacy policy and other terms regarding the use or handling of Customer personal information as required by applicable Data Protection Law. Customer acknowledges that CompanyCam does not assess the type or substance of Customer Data to identify whether it is Customer personal information and/​or subject to any specific legal requirements. Customer shall notify CompanyCam promptly upon learning of any unauthorized use of or access to the Services.

3.3 Restrictions. Customer shall not and shall not permit others to, without the express written permission from CompanyCam: (a.) make the Services available to, or use the Services for the benefit of, anyone other than Customer and its Affiliates; (b.) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Services; (c.) reverse engineer, disassemble, decompile, create derivative works from, copy, modify, adapt, hack the Services, or otherwise attempt to gain unauthorized access to the Services or their related systems or networks; (d.) publicly display or distribute the Services, including, but not limited to, distribution of screenshots, screen captures, or videos of the Services; (e.) access the Services or CompanyCam’s Confidential Information to build a competitive product or service; (f.) alter, hide or remove, or permit any third party to alter, hide or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Services; (g.) allow Authorized User login credentials to be shared or used by more than one individual Authorized User (except that Authorized User Subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Services for any purpose, whether by termination of employment or other change in job status or function); (h.) purchase any services through the Services that are prohibited in Customer’s jurisdiction; (i.) use any software, devices, scripts, crawlers, robots, or other automated processes to copy, scrape, or systematically acquire any content contained within the Services without the express written consent of CompanyCam, (j.) use the Services to store or transmit harmful, abusive, threatening, obscene, defamatory, bigoted, or otherwise objectionable material; (k.) use or incorporate all or a portion of the Services into any large learning model, algorithmic software program, data set, artificial intelligence model or generative artificial intelligence tool; or (l.) access or use the Services: (1) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (2) in violation of applicable laws; (3) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (4) in a manner that interferes with or disrupts the integrity or performance of the Services (or the data contained therein). 

3.4 Customer Data Moderation. Customer is solely responsible for Customer Data and ensuring that Customer Data complies with this Agreement and applicable law. CompanyCam does not pre-screen Customer Data and is not obligated to monitor or review Customer Data for compliance with this Agreement. However, CompanyCam reserves the right, but not the obligation, to access, review, and remove or disable access to any Customer Data at any time, without prior notice, if CompanyCam reasonably believes that: (a.) Customer Data violates Section 3.3 (“Restrictions”), including content that is obscene, unlawful, defamatory, or infringing; (b.) Customer Data poses a security risk to the Services, other customers, or third parties; (c.) Customer Data may create liability for CompanyCam; or (d.) Customer Data violates CompanyCam’s Acceptable Use Policy, if any. 

Removal or disabling of Customer Data under this Section shall not relieve Customer of its payment obligations under this Agreement or its liability for the removed content. CompanyCam shall have no liability to Customer or any third party for any removal or disabling of Customer Data pursuant to this Section. 

3.5 Administration of Customer’s Account. Customer must register for an account to use the Services (“Account”). Customer may specify an Authorized User to be administrator (the ​“Administrator”) to manage the Account, and CompanyCam is entitled to rely on communications from an Administrator when servicing Customer’s account. Customer is responsible for removing Authorized Users and Administrators. Customer is responsible for use of the Services by its Authorized Users for their compliance with this Agreement. 

3.6 Disabling Access. CompanyCam may disable Customer’s or any Authorized User’s access to the Services if the Customer or Authorized User: (a.) violates this Agreement or any incorporated agreement; (b.) uses the Services in a manner that CompanyCam reasonably believes may cause a security risk, a disruption to others’ use of the Services, or liability for CompanyCam; or (c.) uses the Services for suspected fraudulent or illegal activities. Disabled account access shall not relieve Customer’s obligation to pay all amounts due. CompanyCam will have no liability for any damage, liability, loss (including loss of data or profits), or any other consequence that Customer may incur as a result of disabled account access. 

3.7 Ownership Disputes. Ownership of an Account associated with the Services is sometimes disputed between one or more parties. While CompanyCam will have no obligation to do so, CompanyCam reserves the right, at any time and in its sole discretion, with or without notice to Customer, to determine rightful database ownership and to transfer an Account to the rightful owner. If CompanyCam cannot reasonably determine the rightful owner, CompanyCam reserves the right to suspend access to an Account until the disputing parties reach a resolution. CompanyCam also may request joint instructions or certain documentation from the disputing parties, such as a government-issued photo ID, a credit card invoice or a business license, to help determine the rightful owner. 

3.8 Access by Competitors and Others. Except with CompanyCam’s prior written consent, CompanyCam’s direct competitors may not access the Services. In addition, regardless of whether a CompanyCam direct competitor or not, the Services may not be accessed for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes, except with CompanyCam’s prior written consent. 

4. THIRD PARTY APPLICATIONS

Customer may choose to use the Services with third-party platforms, products, or services, including offerings made available through CompanyCam’s application programming interface (“Third-Party Applications”). Third Party Applications are not CompanyCam Services. Customer’s use of Third-Party Applications is subject to the third-party provider’s terms of use. Use of Third-Party Applications with the Services may require the Third-Party Application to access Customer Data. If Customer chooses to use Third-Party Applications with the Services, Customer permits CompanyCam to provide such access on Customer’s behalf. CompanyCam makes no warranty or guarantee with regard to any Third-Party Applications, any interoperation between the Services and Third-Party Applications, or the continued availability of Third-Party Applications. 

5. FEES AND PAYMENT

5.1 Fees. Customer shall pay CompanyCam all fees as set forth in the applicable Order Form and/​or invoice (“Fees”). Except as set forth herein, all payment obligations are non-cancelable, and Fees paid are non-refundable. Customer is responsible for providing complete and accurate billing and contact information to CompanyCam and promptly notifying CompanyCam of any changes to such information. 

5.2. Non-Payment Suspension. Customer may dispute in good faith the amount on an invoice in writing before the due date of such invoice, and shall work diligently with CompanyCam to promptly resolve the dispute. If Customer fails to pay any undisputed portion of a past due invoice within ten (10) calendar days after receiving notice that its account is overdue, CompanyCam may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full (“Non-Payment Suspension”). CompanyCam is not obligated to continue to provide Services without payment of applicable Fees. 

5.3 Acceleration; Collection Costs. If Customer fails to pay any undisputed amount when due and such failure continues for fifteen (15) calendar days following written notice from CompanyCam, CompanyCam may, in its sole discretion, declare all remaining Fees due under the applicable Subscription or Order Form immediately due and payable in full (an ​“Acceleration”). An Acceleration does not require CompanyCam to continue providing the Services, and CompanyCam’s election to exercise or not exercise its right to Acceleration does not waive any other rights or remedies available to CompanyCam under this Agreement or applicable law, including without limitation CompanyCam’s rights under Section 5.2 (“Non-Payment Suspension”) and Section 11.3 (“Termination”). Customer shall be responsible for all fees, charges, and expenses, including reasonable attorneys’ fees, incurred by CompanyCam that are incidental to any chargeback or collection of any unpaid amounts owed by Customer under this Agreement. 

5.4 AUTO-RENEWAL. CUSTOMER AGREES THAT ITS SUBSCRIPTION, INCLUDING ANY ADDITIONAL SERVICES, WILL AUTOMATICALLY RENEW AFTER THE INITIAL SUBSCRIPTION TERM ENDS (THE ​“RENEWAL DATE”) AT THE THEN-CURRENT FEE(S) OR AS QUOTED BY COMPANYCAM. MONTHLY SUBSCRIPTIONS WILL CONTINUE TO RENEW FOR THE SAME SUBSCRIPTION TERM UNTIL CANCELLED. IF CUSTOMER HAS AN ANNUAL SUBSCRIPTION TERM, THE SUBSCRIPTION WILL RENEW FOR THE SAME SUBSCRIPTION TERM UNTIL CANCELLED AND COMPANYCAM WILL NOTIFY CUSTOMER BY EMAIL OR PHONE AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE THEN CURRENT SUBSCRIPTION TERM WITH THE APPLICABLE RENEWAL INFORMATION. IF CUSTOMER HAS A MULTI-YEAR SUBSCRIPTION TERM, THE SUBSCRIPTION WILL RENEW FOR A ONE (1) YEAR PERIOD AND COMPANYCAM WILL NOTIFY CUSTOMER BY EMAIL OR PHONE AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE THEN CURRENT SUBSCRIPTION TERM WITH THE APPLICABLE RENEWAL INFORMATION. SUBSCRIPTIONS WILL AUTOMATICALLY RENEW WITH THE SAME INSTALLMENT PLAN AS APPLICABLE. CUSTOMER AUTHORIZES COMPANYCAM TO AUTOMATICALLY CHARGE CUSTOMER FOR THE APPLICABLE FEES, INCLUDING SUBSCRIPTION FEES, ON OR AFTER THE RENEWAL DATE UNLESS THE SUBSCRIPTION HAS BEEN TERMINATED OR CANCELLED IN ACCORDANCE WITH THIS AGREEMENT. CUSTOMER MUST CANCEL ITS SUBSCRIPTION PRIOR TO THE RENEWAL DATE IN ORDER TO AVOID BEING CHARGED THE APPLICABLE SUBSCRIPTION FEE FOR THE RELEVANT SUBSCRIPTION TERM ON OR AFTER THE RENEWAL DATE. IF CUSTOMER WOULD LIKE TO CANCEL ITS SUBSCRIPTION, PLEASE SEE THE CANCELLATION PROCESS SET FORTH IN SECTION 5.5 BELOW. 

5.5 CANCELLATION. CUSTOMER MUST CANCEL ITS SUBSCRIPTION PRIOR TO THE RENEWAL DATE IN ORDER TO AVOID BEING CHARGED THE APPLICABLE SUBSCRIPTION FEE FOR THE RELEVANT SUBSCRIPTION TERM ON THE RENEWAL DATE. IF CUSTOMER ATTEMPTS TO CANCEL ITS SUBSCRIPTION DURING THE SUBSCRIPTION TERM, CUSTOMER WILL NOT BE ISSUED A REFUND FOR THE MOST RECENT SUBSCRIPTION FEE OR ANY PREVIOUSLY CHARGED FEES, ANY REMAINING FEES OWED INCLUDING THOSE FEES OWED AS PART OF AN INSTALLMENT PLAN WILL STILL BE OWED, AND THE SUBSCRIPTION WILL TERMINATE ON THE NEXT APPLICABLE RENEWAL DATE. TO INITIATE A CANCELLATION, AN ADMINISTRATOR ON CUSTOMER’S ACCOUNT MUST LOG IN TO THE SERVICES VIA A WEB BROWSER, NAVIGATE TO THE ​‘BILLING’ SECTION, AND SELECT ​‘CANCEL PLAN.’ CUSTOMERS MAY ALSO CONTACT COMPANYCAM SUPPORT (SUPPORT@​COMPANYCAM.​COM) TO CANCEL. 

For detailed instructions, please visit CompanyCam’s Help Center at https://​help​.com​pa​ny​cam​.com.

5.6 Taxes. Fees do not include any taxes, tariffs, levies, duties, or similar governmental charges or assessments of any nature, including, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, ​“Taxes”). Unless Customer provides CompanyCam with a valid tax-exemption certificate, Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If CompanyCam is legally required to pay or collect Taxes for which Customer is responsible under this Section, CompanyCam shall invoice Customer and Customer shall pay such amounts, unless Customer provides CompanyCam with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, CompanyCam is solely responsible for taxes assessable against it based on its own income, property, and employees. 

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Customer Data. As between the Parties, Customer Data and Customer’s Confidential Information are and will remain owned exclusively by Customer. Customer hereby grants CompanyCam, its Affiliates, and its subprocessors a worldwide, royalty-free right and license to process and use Customer Data for the purposes of: (a.) providing, maintaining, securing, analyzing, and updating the Services, and to perform under this Agreement; (b.) to develop new products and services; (c.) training, improving, and developing CompanyCam’s internal machine learning and artificial intelligence models used solely to enhance, improve and provide the Services, including the AI Features, provided that such models are not sold or licensed to third parties (except in connection with the transfer or acquisition of all or substantially all of the assets, business or voting securities of CompanyCam); (d.) creating, collecting and compiling data, insights, and information in an aggregated and/​or de-identified manner that does not identify Customer, Customer Confidential Information, Authorized Users, or any individual (“Aggregated Data”); (e.) for any other purpose or use permitted by the Privacy Notice, as amended from time to time; (f.) at Customer’s direction or request or as permitted in writing by Customer; provided, that, in no event may any Customer Data be used to identify or attempt to identify any individual for an unlawful purpose; and (g.) complying with legal or regulatory obligations, enforcements, investigations, or similar proceedings. Customer acknowledges that CompanyCam or its Affiliates may review Customer’s use of the Services for the purpose of providing Services and verifying Customer’s compliance with this Agreement. CompanyCam’s use of Customer Data will comply with Section 2.2 (“Protection of Customer Data”) and Section 7.2 (“Protection of Confidential Information”). Customer acknowledges and agrees that CompanyCam owns all of the following: Aggregated Data, improvements and updates to the Services, new products and services, and all improved internal machine learning and artificial intelligence models. To the extent Customer owns any rights, title or interest, including without limitation Intellectual Property Rights, covering any of the foregoing, Customer hereby assigns to CompanyCam all such rights, title and interest. 

6.2 Ownership; Reservation of Rights. As between the Parties, all Intellectual Property Rights, including Intellectual Property Rights in the Services, Services, Updates, Beta Services, Aggregated Data, and CompanyCam’s Confidential Information, are and will remain owned exclusively by CompanyCam and its Affiliates, as applicable. CompanyCam may freely use and incorporate into CompanyCam’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Authorized Users relating to CompanyCam’s products or services. Feedback and any other suggestions are provided by Customer exclusively ​“as is,” in Customer’s sole discretion, and will not be used in CompanyCam in any way that identifies Customer or Authorized Users. Nothing in this Agreement will preclude or limit CompanyCam from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services or other CompanyCam Intellectual Property Rights are granted to Customer, and all such rights are expressly reserved to CompanyCam and its Affiliates. 

7. CONFIDENTIALITY

7.1 Definition of Confidential Information. ​“Confidential Information” means all information or data disclosed by a Party or any of its Affiliates (as applicable, the ​“Disclosing Party”) to the other Party or any of its Affiliates (as applicable, the ​“Receiving Party”) that is confidential, proprietary, or otherwise not publicly available, or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, whether oral or in writing, and disclosed during the Term in connection with the Services. Confidential Information includes (a.) with respect to Customer, Customer Data; (b.) with respect to CompanyCam, the Services, pricing, and the Beta Services, including any discussions or information related to Beta Services; and (c.) with respect to a Party, any technical, financial, economic, marketing, strategic, business, product, design, or operational information of such Party, including the terms of this Agreement. Confidential Information does not include any information that the Receiving Party can demonstrate (w) is or becomes generally known to the public without breach of this Agreement or any other agreement by the Receiving Party; (x) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (y) is received from a third party without restriction on disclosure and without breach of any obligation owed to the Disclosing Party; or (z) was independently developed by the Receiving Party without use of or reference to any Confidential Information, as demonstrated by contemporaneous written documentation. 

7.2 Protection of Confidential Information. The Receiving Party shall (a.) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b.) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c.) except as otherwise expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential Information to its legal counsel, accountants, and those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are under obligations to maintain confidentiality no less restrictive than those herein (“Authorized Recipients”). Each Party shall remain responsible for such Authorized Recipients’ compliance with this ​“Confidentiality” Section. 

7.3 Compelled Disclosure. The Receiving Party may access and disclose Confidential Information of the Disclosing Party if legally required to do so in connection with any legal or regulatory proceeding. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for the reasonable costs of compiling and providing secure access to such Confidential Information if requested by the Receiving Party. The Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. 

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS

8.1 General Warranty. Each Party represents and warrants that it has the necessary rights to enter into this Agreement and has the legal power to do so. 

8.2 CompanyCam Limited Warranties. CompanyCam warrants that: (a.) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (b.) its performance hereunder will not conflict with any other agreements with third parties. 

8.3 Disclaimers. Except as expressly provided herein, neither Party nor its licensors or subprocessors makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each Party and its licensors and subprocessors specifically disclaim all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement, to the maximum extent permitted by applicable law. CompanyCam does not warrant that the Services will be error-free or uninterrupted, or will meet Customer’s requirements or expectations; rather, the Application and Services, and all related components and information are provided on an ​“as is” and ​“as available” basis without warranties of any kind.

9. INDEMNIFICATION

9.1 Indemnification by CompanyCam.

1. CompanyCam shall defend any claim against Customer by a third party to the extent the claim is based on an allegation that the Services infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party (a ​“Claim”). In no event will CompanyCam have any obligations or liability under this Section arising from: (i) Customer’s use of the Services other than as permitted under this Agreement; or (ii) use of the Services in a modified form or in combination with products, services, content, or data furnished to Customer by CompanyCam.

2. If any Claim is brought or threatened, or if CompanyCam reasonably believes that the Services may become the subject of a Claim, CompanyCam may, at its sole option and expense: (1) procure for Customer the right to continue to use the Services; (2) modify the Services to make them non-infringing; (3) replace the affected aspect of the Services with non-infringing technology having substantially similar capabilities; or (4) if CompanyCam determines none of the foregoing is commercially practicable, terminate the affected Service and refund Customer any prepaid Fees related to the applicable Services prorated for the remainder of the Subscription Term.

3. CompanyCam’s defense and indemnity obligations do not apply to, and CompanyCam will have no liability with respect to, any Claim arising in whole or part due to: (1) any modification of the Services made by anyone other than CompanyCam; (2) any use of the Services in combination with software, products, or services not provided by CompanyCam; (3) any Third-Party Applications; (4) Beta Services or Services for which there is no charge (other than discounted Services); (5) Customer’s use of the Services not in compliance with this Agreement; or (6) Customer’s failure to use any Update provided by CompanyCam, to the extent such Update would make the Services non-infringing.
   
   This indemnity states CompanyCam’s entire liability, and Customer’s sole and exclusive remedy, for any Claims as described in Section 9.1.

9.2 Indemnification by Customer. Customer shall indemnify, defend, and hold CompanyCam, its affiliates, and its and their respective directors, shareholders, officers, employees, agents, and successors, harmless from and against any and all demands, claims, actions, proceedings and regulatory actions brought against CompanyCam or any other indemnified party by a third party, and all related liabilities, losses, costs, and expenses of any nature whatsoever (including without limitation reasonable attorney fees), that arise from or relate to Customer Data (if used by CompanyCam in accordance with this Agreement), use of the Services under this Agreement, or Third-Party Applications built by or on behalf of Customer. 

9.3 Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a.) prompt notice; (b.) sole control over the defense and any settlement negotiations; and (c.) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of the indemnifiable claim. The indemnifying Party shall not agree to a settlement that imposes any obligation or liability on the indemnified Party without the indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party. 

10. LIMITATION OF LIABILITY

10.1 Exclusion of Damages. Except with regard to a Party’s indemnification obligations under Section 9 (“Indemnification”), neither Party nor its respective Affiliates will be liable for any loss of profits, revenues, goodwill, anticipated savings, or use, costs of substitute goods or services, business interruption, or work stoppage, or any indirect, special, incidental, exemplary, punitive, or consequential damages, however caused, and based on any theory of liability, arising out of or relating to this Agreement, whether for breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if such Party is advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.

10.2. Limitation of Liability. A Party’s and its respective Affiliates’ aggregate cumulative liability for all damages arising out of or related to this Agreement will not exceed the applicable Fees paid or payable to CompanyCam for the applicable Services and attributable to the twelve (12) month period immediately preceding the event giving rise to the liability. The existence of more than one claim will not expand this limit. The liability limitations under this Section 10.2 will not apply to (a.) Customer’s obligations to pay Fees due under this Agreement; (b.) either Party’s indemnity obligation amounts under Section 9; or (c.) either Party’s gross negligence, willful misconduct, or fraud. Nothing in this Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.

11. TERM AND TERMINATION

11.1 Subscription Term. This Agreement commences on the Effective Date and shall remain in effect until all Subscriptions to the Services used by you and granted in accordance with this Agreement have expired or been terminated. 

11.2 Suspension. In the event of Customer’s or an Authorized User’s breach of this Agreement, including without limitation for Non-Payment Suspension or violation of the restrictions in Section 3.3 (“Restrictions”), CompanyCam may, in its reasonable discretion, suspend Customer’s or an Authorized User’s access to or use of the Subscription Services. Notwithstanding the foregoing, unless the circumstances dictate otherwise, CompanyCam shall reasonably notify Customer and the Authorized User via email before taking the foregoing actions, and shall restore access once the breach has been remedied. 

11.3 Termination. Either party may terminate this Agreement if the other party: (a.) is in material breach of this Agreement, including any incorporated agreements, and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party, except that termination will take effect upon notice in the event of a breach of Section 3.3 (“Restrictions”); or (b.) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Additionally, CompanyCam may terminate this Agreement, including any incorporated agreements, immediately upon notice to Customer at any time and for any reason or no reason. 

11.4 Effect of Termination. Upon the termination of this Agreement for any reason: (a.) unless otherwise agreed by the Parties in writing, all outstanding Order Forms and access to the Services will automatically terminate; (b.) Customer and its Authorized Users shall immediately cease access and use of the Services, other than for retrieval purposes provided in (d.) below; (c.) all Customer’s outstanding payment obligations will become due and payable immediately; and (d.) for six (6) months following the end of the final Subscription Term, CompanyCam shall make Customer Data available to Customer, at Customer’s request solely for purpose of allowing Customer to retrieve Customer Data. 

11.5 Refund or Payment Upon Termination. If Customer terminates this Agreement due to CompanyCam’s material breach, or CompanyCam terminates this Agreement for convenience, CompanyCam shall refund Customer the prorated portion of prepaid Fees for the remaining Subscription Term. If CompanyCam terminates this Agreement due to Customer’s material breach, Customer shall promptly pay any unpaid Fees. Termination will not relieve Customer of its obligation to pay any Fees for the period prior to the effective date of termination. 

11.6 Surviving Provisions. The following Sections shall survive any termination of this Agreement: Section 5 (“Fees and Payment”), Section 6 (“Proprietary Rights and Licenses”), Section 7 (“Confidentiality”), Section 8 (“Representations, Warranties, Exclusive Remedies, Disclaimers”), Section 9 (“Indemnification”), Section 10 (“Limitation of Liability”), Section 11 (“Term and Termination”), Section 12 (“Mobile Application License”), and Section 13 (“General Provisions”). 

12. MOBILE APPLICATION LICENSE

12.1 License. CompanyCam may offer from time to time the CompanyCam Mobile Application. If such an Application is available and Customer or its Authorized User and/​or Customer’s customers chooses to download it, subject to, and in accordance with, the terms of this Agreement, CompanyCam grants to such Customer, Authorized User and/​or Customer’s customers, and such party accepts from CompanyCam, a limited, revocable, non-exclusive, and non-transferable license to use the Application. CompanyCam reserves all rights not expressly granted hereunder. This license is automatically revoked if a party violates any of the terms of this Agreement. 

12.2 Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to use, receive or view, copies of source code, schematics, master copies, design materials or other information used in creating, developing or implementing the Application or any software or platforms used to provide the Services, including updates or modifications thereto. Without limiting the foregoing, Customer, its Authorized Users and/​or Customer’s customers shall have no rights to receive any source code for the Application or any software or platforms used to provide the Services and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Application or any software or platforms used to provide the Services for any purpose. 

12.3 Prohibitions. Customer agrees not to do, or permit others to do, any of the following: (a.) copy or modify the Application or any software or platforms used to provide the Services in any way, except as expressly permitted in this Agreement; (b.) remove or modify CompanyCam’s copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Application or the Services; (c.) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the source code or object code of the Application or any software or platforms used to provide the Services or other runtime objects or files distributed with the Application or any software or platforms used to provide the Services; (d.) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application or the Services; (e.) rent, lease, distribute (or redistribute), provide or otherwise make available the Application or the Services, in any form, to any third party (including in any service bureau or similar environment); (f.) use the Application or the Services to process the data of third parties; (g.) use, install, or make available the Application or any software or platforms used to provide the Services, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP); or (h.) use the Application or the Services to infringe on any person’s copyright. In addition, Customer agrees not to violate or attempt to violate the security of CompanyCam’s networks or servers, including (x) access data not intended for Customer or log into a server or account which Customer is not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing. 

12.4 Maintenance or Support. CompanyCam is not under any obligation to provide maintenance or support for the Application or the Services. CompanyCam may provide maintenance or support for the Application or the Services in CompanyCam’s sole discretion. 

12.5 Uninstallation. Customer, its Authorized User and/​or Customer’s customers, may at any time, uninstall the Application by utilizing its mobile device’s procedures for uninstalling downloaded applications. However, CompanyCam may retain collected data after the uninstallation. 

13. GENERAL PROVISIONS

13.1 Trademarks and Logo Usage. Each Party shall not use the logos, trademarks, service marks, product names, or trade names of the other Party without the prior written consent of the other Party. If Customer uses CompanyCam’s logos, trademarks, service marks, product names, or trade names, such use will be subject to the CompanyCam trademark usage guidelines.

13.2 Copyright Policy. CompanyCam respects the Intellectual Property Rights of others and complies with the Digital Millennium Copyright Act of 1998 (the ​“DMCA”), which provides a complaint procedure for copyright owners who believe that any material posted online or in an app infringes their rights under U.S. copyright law. If you believe in good faith that your work has been improperly copied and posted, please email dmca@​companycam.​com.

13.3 Export Control and Sanctions. Each Party shall comply with all applicable Export Control and Sanctions Laws and Regulations in connection with providing and using the Services. Without limiting the foregoing, (a.) each Party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to jurisdiction of U.S. Export Controls or U.S. persons transacting with it (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity or individual; (b.) Customer shall not, and shall ensure that Authorized Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause any such violation to occur; and (c.) Customer shall not use or cause any person to use the Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations. 

13.4 Applicable Law & Anti-Corruption. Each Party shall comply with applicable laws in performance of this Agreement. Neither Party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other Party in connection with this Agreement. Reasonable and lawful gifts, entertainment, sponsorships, and donations do not violate the above restriction. 

13.5 Governing Law & Venue. This Agreement is governed by Nebraska law, without giving effect to conflicts of law principles. Customer agrees that, to the extent applicable and expressly subject to the dispute resolution provisions below, to submit to the exclusive jurisdiction of the state and federal courts located in Lancaster County, Nebraska in circumstances where this Agreement permits litigation in court, in all cases without reference to conflict of law rules of any jurisdiction. 

13.6 Dispute Resolution.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS BETWEEN YOU AND COMPANYCAM ARE RESOLVED. BY AGREEING TO THIS AGREEMENT, CUSTOMER AND COMPANYCAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. 

1. Agreement to Arbitrate. This Section 13.6 is referred to as the ​“Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and CompanyCam, whether arising out of or relating to this Agreement, shall be resolved exclusively through final and binding arbitration rather than in a court, in accordance with the terms of this Arbitration Agreement, except as set forth in Section 13.6(f) below. This Arbitration Agreement includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Each party’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. 

2. Prohibition of Class and Representative Actions; Individual Relief Only. Customer and CompanyCam agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative action or proceeding. Unless both Customer and CompanyCam agree otherwise in writing, the arbitrator may not consolidate or join more than one person’s or party’s claims, and may not otherwise preside over any form of a consolidated, representative, or class proceeding. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). The arbitrator is not empowered to award punitive or exemplary damages, and each Party irrevocably waives any right to recover such damages in arbitration. 

3. Pre-Arbitration Dispute Resolution. The Parties shall attempt in good faith to resolve any dispute before initiating arbitration. A party intending to seek arbitration must first send the other party a written notice of the dispute (“Notice of Dispute”) by certified mail or overnight courier (signature required). CompanyCam’s address for a Notice of Dispute is: CompanyCam, Inc., Attention: Legal Department, 300 Canopy St #200, Lincoln, NE 68508. The Notice of Dispute must: (i) describe the nature and basis of the claim or dispute in reasonable detail; and (ii) set forth the specific relief sought. If the Parties do not resolve the dispute within sixty (60) calendar days after the Notice of Dispute is received, either Party may commence an arbitration proceeding. During arbitration, the amount of any settlement offer made by either Party shall not be disclosed to the arbitrator until after the arbitrator issues a final decision and award, if any. 

4. Arbitration Procedures. Any arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules (the ​“AAA Rules”), as modified by this Arbitration Agreement. If any term of this Arbitration Agreement conflicts with the AAA Rules, the terms of this Arbitration Agreement will control. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Any arbitration hearing will take place in Lancaster County, Nebraska, unless the Parties agree otherwise in writing. The arbitrator may award the same damages and relief on an individual basis that a court could award under this Agreement and applicable law. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Judgment upon the award rendered by the arbitrator may be entered in and enforced by any court of competent jurisdiction. All arbitration proceedings, including any award, shall be kept confidential by both Parties and their representatives, except as required by law or as necessary to enforce an award. 

5. Arbitration Fees. The payment of AAA filing, administration, and arbitrator fees will be governed by the AAA Rules unless otherwise agreed by the Parties in writing. If the arbitrator determines that a party’s claim or defense is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b), that party shall reimburse the other party for all fees and costs, including arbitration fees, incurred in connection with the defense of that claim.

6. Exceptions to Arbitration. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either Party from: (i) bringing an individual action in small claims court if the claim qualifies and remains in such court; (ii) seeking a temporary restraining order or preliminary injunction in a court of competent jurisdiction where necessary to prevent irreparable harm pending the resolution of a dispute through arbitration, provided that all other relief shall be pursued through arbitration pursuant to this Section 13.6; (iii) bringing a court action to address a claim for infringement or misappropriation of Intellectual Property Rights; or (iv) bringing a court action to collect undisputed fees or accelerated amounts owed by Customer under this Agreement, including pursuant to Section 5.3. If a small claims matter is transferred, removed, or appealed to a different court, either Party may require the claim to be submitted to arbitration pursuant to this Section 13.6.

7. Enforceability. If Section 13.6(b) or the entirety of this Section 13.6 is found by a court of competent jurisdiction to be unenforceable, then this Section 13.6 shall be null and void in its entirety. In that case, the exclusive jurisdiction and venue described in Section 13.5 shall govern any action arising out of or related to this Agreement, and all such actions shall proceed on an individual basis only — not as a class, consolidated, or representative action. 

13.7 Notices. Notices to Customer will be delivered via email, text, in-app notifications, by posting on the CompanyCam website, or through the Services. Such electronic notices shall satisfy any legal requirement that such notices be made in writing. Notices to CompanyCam will be delivered via email to legal@​companycam.​com or by overnight delivery to CompanyCam, Inc., Attention: Legal Department, 300 Canopy St #200 Lincoln, NE 68508 USA. 

13.8 Electronic Signature. When a document is electronically displayed to Customer in the Services or for onboarding to the Services, Customer agrees that Customer’s electronic signature for the document may include clicking displayed buttons, selecting displayed boxes, typing Customer’s name in a designated field or otherwise selecting an electronic facsimile signature for the field, sending an email reply to a message transmitted to Customer’s designated email address, or taking other affirmative actions when Customer view an electronic document displayed on Customer’s computer or mobile or handheld device. Customer is solely responsible for ensuring its use of any electronic signature features within the Services complies with applicable law, including the Electronic Signatures in Global and National Commerce Act (ESIGN) and any applicable state laws. CompanyCam makes no representation that such features satisfy the legal requirements of any particular document, transaction, industry, or jurisdiction. 

13.9 Force Majeure. Neither Party will be liable for any failure or delay in its performance under this Agreement to the extent due to any cause beyond its reasonable control (a ​“Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event and shall resume performance as soon as practicable following the Force Majeure Event. 

13.10 Assignment. Each Party shall not assign this Agreement, in whole or part, or any right or interest herein, without the other Party’s prior written consent, not to be unreasonably withheld, and any purported assignment without such consent will be void. However, either Party may assign this Agreement without consent to an Affiliate, or in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets or business, or other change-of-control transaction. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Assignment will not relieve Customer of its obligation to pay Fees incurred before the assignment. 

13.11 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. 

13.12 Amendment. CompanyCam may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will become effective upon the earlier of (a.) Customer’s affirmative acceptance of the amended Agreement, or (b.) thirty (30) days after CompanyCam sends such notice to Customer (the ​“Amendment Effective Date”). Customer’s continued use of the Services following the Amendment Effective Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Customer recognizes and agrees that CompanyCam’s Privacy Notice is not incorporated into this Agreement, and CompanyCam may revise its Privacy Notice and DPA at any time in its sole discretion. 

13.13 Entire Agreement; Order of Precedence. This Agreement (together with any Order Forms, statements of work, and linked terms) contains the entire understanding and agreement of the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous communications, representations, agreements, and understandings, either oral or written, between the Parties with respect to its subject matter. In the event of any conflict or inconsistency between or among the following documents, the order of precedence will be: (1) the DPA, (2) the Order Form, (3) SOW, (4) this Agreement, and (5) any links provided herein. Any amendment will take precedence over the document it amends. 

13.14 Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the Parties as evidenced by this Agreement, and the remainder of this Agreement will continue in full force. The English language version of this Agreement will be the version used when interpreting or construing this Agreement. Any notices in connection with this Agreement must be provided in English. Either Party’s failure to enforce any right under this Agreement will not waive that right. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that CompanyCam will have no obligations or liability whatsoever to any third parties with which Customer does business. 

Contact Us

If you have any questions about this Agreement, please contact legal@​companycam.​com.