Terms & Conditions
These terms and conditions (the “Agreement”) is entered into and made effective as of the date indicated on the attached Statement of Work (the “Effective Date”) and is by and between ConstructEdge, LLC. (“ConstructEdge”), and undersigned Client. ConstructEdge and Client may each be referred to as a “Party” or collectively, as the “Parties.”
1. Services and Deliverables
1.1 Services. “Services” means all services furnished by ConstructEdge to Client as set forth in the attached Statement of Work. ConstructEdge will provide Services under this Agreement in accordance the Statement of Work.
1.2 Deliverables. “Deliverables” means the tangible items that are specified in and provided to Client pursuant to the Statement of Work and includes, without limitation, any hardware, equipment, materials, documentation, designs, drawings, data files, computer programs, textual items, audio and visual items, graphical items and modifications thereto and other works of authorship resulting from the performance of Services under this Agreement by ConstructEdge, its agents and subcontractors. Unless explicitly stated otherwise, the Deliverables are the property of ConstructEdge the use of which is granted to Client under license during the Term. For clarity, Rental Equipment as defined in Section 1.4 is not a ‘Deliverable’ and is governed exclusively by Section 1.4 and Section 8.2.
1.3 Adoption of Statement of Works and Changes. The Statement of Work may be amended to include new job-site specific Services and Deliverables through ConstructEdge’s online Client Portal, Manage360®, ConstructEdge’s online client-portal. Through Manage360, Client may request certain, routine Services or Deliverables be added to the Statements of Work and send requests to decommission job sites and terminate the Statement of Work. All Statements of Work or modifications thereof submitted by Client and accepted by ConstructEdge through Manage360 shall constitute binding amendments. Client agrees that it is responsible for the secrecy of its usernames and passwords to Manage360 and represents and warrants that such person(s) who access and submit Statements of Work or modifications thereof through Manage360 with Client’s credentials do so on behalf of Client.
1.4 Rental Equipment – Title, Risk of Loss, Insurance, Care, and Related Obligations.
(a) Definition and Scope. “Rental Equipment” means any mobile surveillance trailer(s), light tower(s), generator(s), camera system(s), routers, access points, or other tangible equipment that ConstructEdge rents or sub-rents to Client under any Statement of Work, regardless of whether legal title is held by ConstructEdge or a third-party lessor.
(b) Title. Title to all Rental Equipment shall remain at all times with ConstructEdge or its third-party lessor. Client acquires no ownership, title, property right, equity, or security interest in the Rental Equipment.
(c) Risk of Loss – Strict Liability. From the earlier of (i) delivery of the Rental Equipment to Client, its carrier, or the job site or (ii) the date the Rental Equipment is made available for Client’s use, until the Rental Equipment is redelivered to and accepted in writing by ConstructEdge at ConstructEdge’s designated facility, Client shall bear the entire risk of loss, theft, mysterious disappearance, confiscation, damage, or destruction from any cause whatsoever, whether or not covered by insurance and whether or not caused by the negligence or fault of Client or any third party. In the event of any such loss, theft, or damage, Client shall immediately notify ConstructEdge and shall pay ConstructEdge the full Replacement Cost of the affected Rental Equipment plus all accrued rental charges and other amounts due under this Agreement. Payment shall be due within ten (10) days of ConstructEdge’s invoice.
(d) Replacement Cost. “Replacement Cost” means ConstructEdge’s then-current list price for identical new equipment (or, if no longer available, the closest equivalent), plus freight, taxes, installation charges, and all other costs incurred by ConstructEdge to replace the unit.
(e) Insurance. Client’s insurance obligations with respect to Rental Equipment are set forth exclusively in Section 8.2 below (as amended. For the avoidance of doubt, the insurance requirements in Section 8.2 supersede and replace the insurance language that previously appeared in the original Section 1.4 of this Agreement.
(f) Standard of Care. While Rental Equipment is in Client’s possession, custody, or control or located on Client’s job site, Client shall protect and maintain it in a secure manner and shall exercise at least the same degree of care as it uses for its own similar equipment, but in no event less than reasonable care. The strict-liability provisions in subsection (c) above shall apply regardless of whether Client satisfies this standard of care.
(g) No Conflicting Liens. Client shall keep the Rental Equipment free of all liens, encumbrances, and claims and authorizes ConstructEdge to file UCC-1 financing statements as necessary to protect title.
1.5 Access to Client or Job Site Premises. Client represents that it has the authority to grant ConstructEdge (or its subcontractor), an unrestricted right of access to the network hardware at a job site for the purpose of repairing, monitoring, removing or replacing the hardware while ConstructEdge is providing services to Client and that this authority extends for a reasonable time after termination or expiration of this Agreement to allow ConstructEdge to remove its hardware and any Rental Equipment. Client is responsible for providing ConstructEdge with all reasonable and necessary access to the facilities and agrees to provide proof of such access rights when reasonably requested. ConstructEdge’s employees and subcontractors agree to participate in OSHA and other safety training requirements for access to the jobsite.
1.6 Site Review. ConstructEdge may perform an installation review of a job site or premises prior to installation of the Services and Deliverables. Client may be required to provide ConstructEdge with accurate site and/or physical network diagrams or maps prior to the installation review. ConstructEdge may directly or through its agents inspect the Client’s job site or premises before beginning installation, and shall satisfy itself that safe installation and proper operation of any Deliverables and the Services are possible in the location(s) provided by Client. If ConstructEdge, in its sole discretion, determines that safe installation and/or activation of one or more of the Services or Deliverables will have negative consequences to ConstructEdge’s personnel or network and/or cause technical difficulties to ConstructEdge or its customers, ConstructEdge may terminate a portion of the Statement of Work so affected upon prior written notice to Client or may require the Client to correct the situation before proceeding with installation or activation of the Services.
1.7 Storage and Inventory Management Services. If Client elects to receive these services with the Services, ConstructEdge will store and manage the inventory of certain Client equipment that is intended to be commission, decommissioned, and recommissioned across multiple job sites. For such Client equipment, Client is responsible for the equipment, including for normal wear or damage, or loss of the equipment at the job site. ConstructEdge will notify Client when such equipment is no longer suitable for continued use and needs replaced. Client agrees that it is responsible for all replacement costs of such equipment.
2. Fees and Payments
2.1 Fees. In consideration for providing Services and Deliverables hereunder, Client will pay in U.S. dollars to ConstructEdge the fees, prices, charges and reimbursable items and expenses pursuant to the terms set forth herein. The pricing for Services and Deliverables available for order through Manage360 are identified therein or may be provided via a separate addendum either provided to Client or posted on Manage360 (the “Price Sheet”). The Price Sheet for Services and Deliverables shall be amendable each calendar quarter during the Term with sixty (60) days’ advance notice to the Account. Once amended, the new pricing will be shown on Manage360. ConstructEdge increases fees owed under any Statement of Work by the greater of four and one-half percent (4.5%) or by the inflation rate as measured by the Consumer Price Index annually during the Term.
2.2 Fees, Taxes, Surcharges. Client is responsible for and agrees to pay all fees, taxes, and surcharges associated with the Services and the Deliverables. These taxes, include, but are not limited to, sales, use, value added, excise and all other federal, state or local taxes, surcharges, and customs duties, cost recovery fees, property tax surcharges, franchise cost recovery fees, federal access recovery fees, universal cost recovery fees, universal service fund and similar costs. Client is not responsible for taxes on ConstructEdge’s net income or taxes for which Client provides ConstructEdge with a proper tax exemption certificate.
2.3 Invoices and Payment. ConstructEdge will invoice Client for the fees, prices, charges, Recovery Surcharge, and reimbursable items and expenses payable to ConstructEdge as the conditions to payment are satisfied. ConstructEdge requires a fifty percent (50%) down payment on all labor and set-up fees or hardware under any Statement of Work. The remaining fifty percent (50%) will be invoiced when all or a portion of the Services or Deliverables are available for Client’s use. Otherwise, such conditions to payment begin as Client receives all or any portion of the Services. Client must pay for Services that are provided on a monthly reoccurring basis in advance of service. ConstructEdge will invoice Client one month in advance for such Services. Client will pay the invoiced amount Net (30). In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion is to be paid according to this Section. Client must notify ConstructEdge of any disputes with respect to an invoice before payment is due; otherwise, Client is deemed to have waived its right to dispute such invoice.
2.4 Interest on Late Payments. Any amount that is not paid when due is subject to a late payment charge equal to the lesser of one and one-half percent (1.5%) per month, or the maximum amount allowed by law, which will accumulate monthly until all amounts are paid in full. ConstructEdge reserves the right to interrupt service immediately and with no notice when payment on an account is past due.
3. Confidential Information
3.1 Definition of Confidential Information. Confidential Information means information identified on, in or constituting: all strategic and development plans, financial information, results of the Services or Deliverables, business plans, information about parent, subsidiaries or sister companies, co-developer identities, data, business records, client lists, identity of vendors and partners, policy information, personally identifiable information, personal financial information or personal health information (as those terms are defined by governing law), product designs, test data, project records, market reports, investor information, know-how, discoveries, ideas, concepts, specifications, models, diagrams, methodologies, research, technical and statistical data, drawings, models, flow charts, work-flow, marketing, pricing, selling, distribution, database descriptions, software code, source code, object code, intellectual property, and any and all other tangible or intangible information, encompassed in any medium, which may be disclosed, whether or not in writing, whether or not marked as “Confidential” or “Proprietary” by the Disclosing Party (defined below) or to which the Receiving Party (defined below) may be provided access to by Disclosing Party in accordance with this Agreement, or which is generated or learned as a result of or in connection with the Services and is not generally available to the public. “Confidential Information” also includes proprietary or confidential information of any third party that may disclose such information to either Party in the course of that Party’s relationship with a party.
3.2 Covenants. Each Party agrees to hold in confidence all Confidential Information (defined below) that it receives (the “Receiving Party”) from the other Party (the “Disclosing Party”). The Receiving Party will not disclose any of the Disclosing Party’s Confidential Information to persons not having a need to know such Confidential Information consistent with the purpose for which it was disclosed. Receiving Party will not use, directly or indirectly, any of the Disclosing Party’s Confidential Information for any purpose that is in any way detrimental to the Disclosing Party. This includes, but is not limited to, contracting with the Disclosing Party’s vendors or partners to obtain or receive services similar to those provided under this Agreement. Receiving Party shall take reasonable precautions to protect the confidentiality and value of Disclosing Party’s Confidential Information, including measures to prevent loss, theft and misuse. Receiving Party shall immediately give notice to Disclosing Party of any unauthorized use or disclosure of Disclosing Party’s Confidential Information. Receiving Party agrees to assist Disclosing Party in remedying any unauthorized use or disclosure of Confidential Information caused by such Receiving Party.
3.3 Return of Confidential Information. Upon written request of the Disclosing Party, the Receiving Party will promptly return or destroy (as directed by the Disclosing Party) all Confidential Information received from the Disclosing Party, including all copies thereof. Upon the request of the Disclosing Party, the Receiving Party shall furnish to the Disclosing Party an affidavit providing assurances as to the return or destruction of the Disclosing Party’s Confidential Information.
3.4 Disclosure Required by Law. A disclosure of Confidential Information in response to a valid order by a court or other governmental body or otherwise required by law is not considered to be a breach of this Agreement or a waiver of confidentiality for other purposes. Before any such disclosure, Receiving Party shall provide prompt written notice to Disclosing Party and cooperate with the Disclosing Party in seeking a protective order or preventing disclosure.
3.5 Ownership. Except as provided in this Agreement or any Statement of Work, all materials, including Deliverables, transmitted between the Parties and containing Confidential Information are to remain the sole and exclusive property of the Disclosing Party. Except for the licenses or ownership rights granted pursuant to this Agreement, this Agreement and transmission or disclosure of any Confidential Information does not grant the Receiving Party a license or ownership of any type.
3.6 Expiration of Obligations. All obligations and restrictions of confidentiality under this Agreement are to remain in effect for a period of five (5) years following the date of disclosure for Confidential Information. Such time periods may be extended upon written agreement of the Parties, and with respect to Trade Secrets pursuant to applicable law, for as long as such information remains a Trade Secret.
3.7 Responsibility for Affiliates and Representatives. Each Party is solely responsible for any breach of this Agreement by its representatives including, without limitation, any improper use or disclosure by its representatives of the other Party’s Confidential Information. Receiving Party may disclose Confidential Information to its representatives who in Receiving Party’s reasonable judgment have the need to know such information in connection with this Agreement. Receiving Party shall inform its representatives of the confidential nature of such Confidential Information, shall direct them to hold Confidential Information in strict confidence, shall take all reasonable precautions to prevent improper use of Confidential Information by them, and shall be responsible for any breaches by them of the terms found in this Agreement.
3.8 Prior Confidentiality and NDA. The Parties may have entered into a confidentiality agreement prior to the Effective Date of this Agreement. To the extent that such a confidentiality agreement was executed by the Parties, this Agreement supersedes and overrides any contrary provisions in such agreement.
4. Warranties
4.1 ConstructEdge’s Limited Warranty on Services. ConstructEdge represents and warrants that all Services will be performed in a competent, professional and workmanlike manner and in conformity with the requirements set forth in the Statement of Work or in any exhibits or schedules attached thereto and consistent with good professional practice and accepted industry standards.
4.2 ConstructEdge’s Limited Warranty on Deliverables. ConstructEdge represents and warrants that all Deliverables, when accepted, will meet the applicable specifications set forth in the Statement of Work
4.3 Disclaimer of All Other Warranties. THE SERVICES AND THE DELIVERABLES ARE OTHERWISE PROVIDED “AS IS” AND “WITH ALL FAULTS”. CONSTRUCTEDGE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT INFORMATION TECHNOLOGY SERVICES ARE INHERENTLY DIFFICULT TO PROVIDE WITHOUT ERROR OR INTERRUPTION. ISSUES CAN AND OFTEN DO ARISE THROUGH NO FAULT OF CONSTRUCTEDGE, SUCH AS INADVERTENT OR PURPOSEFUL CHANGING OF SETTINGS, DOWNLOADING SPAM, MALWARE, VIRUSES, ETC., AND FAILURE OF THE HARDWARE AND SOFTWARE TO WORK AS EXPECTED. FOR THIS REASON, CONSTRUCTEDGE CANNOT AND DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES, INCLUDING THE HARDWARE AND SOFTWARE, WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT MATERIAL INTERRUPTION. CONSTRUCTEDGE CANNOT AND DOES NOT WARRANT THAT CLIENT WILL NOT SUFFER A SECURITY OR DATA BREACH.
4.4 Client Warranties. The Client represents and warrants that it: (a) will provide ConstructEdge with: (i) all necessary cooperation in relation to this Agreement, and (ii) all necessary access to such information as may be required by ConstructEdge in order to render the Services; (b) will comply with all applicable laws, rules, regulations, and ordinances with respect to its use or receipt of the Services, Deliverables, or activities under this Agreement; (c) carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner, and in the event of any delays in the Client’s provision of such assistance as agreed by the Parties, ConstructEdge may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) will obtain and will maintain all necessary licenses, consents, and permissions necessary for ConstructEdge, its contractors and agents to perform their obligations under this Agreement; (e) will not or allow anyone else to use the Services or Deliverables for any improper purpose, including, but not limited to infringe any third party’s intellectual property (including copyrights) or privacy rights; and (f) has the legal power and authority to enter into this Agreement.
5. Remedies and Limitations on Liability
5.1 Equitable Relief. Each Party agrees and acknowledges that breach of this Agreement may cause the other irreparable harm without an adequate remedy at law and hereby agrees that the other Party may seek temporary or permanent injunctive relief to prevent or limit the effect of any such breach.
5.2 Attorney Fees. If any dispute arises between the Parties hereto concerning the breach, enforcement or interpretation of any provision of this Agreement, then the prevailing Party shall be reimbursed its court costs, reasonable attorneys’ and expert witness fees and disbursements, and all other costs and expenses incurred by the other Party on account thereof, including those incurred in connection with any matters on appeal.
5.3 Limitations on Liability. IN NO EVENT SHALL CONSTRUCTEDGE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF CONSTRUCTEDGE OR ANY OTHER PARTY, EVEN IF CONSTRUCTEDGE IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CONSTRUCTEDGE’S LIABILITY FOR THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, EXCEED THE AMOUNT ACTUALLY PAID TO CONSTRUCTEDGE BY CLIENT IN THE PRECEDING YEAR. THE FOREGOING IS INTENDED AS A COMPLETE ALLOCATION OF THE RISKS BETWEEN THE PARTIES. BECAUSE THE BARGAIN STRUCK AND THE PRICE PAID REFLECT SUCH ALLOCATION THIS LIMITATION UPON REMEDIES WILL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 5.3 SHALL LIMIT CLIENT’S OBLIGATIONS UNDER SECTIONS 1.4 OR 8.2 WITH RESPECT TO LOSS, THEFT, OR DAMAGE TO RENTAL EQUIPMENT OR CLIENT’S INSURANCE AND INDEMNIFICATION OBLIGATIONS.
5.4 Time Limit on Claims. No action on this Agreement, except for payment owed by Client to ConstructEdge, may be brought more than twelve (12) months after it accrues.
6. Indemnity
Client shall indemnify and hold harmless ConstructEdge, its officers, directors, employees and agents from and against any claim, liability, damage, assessment, or expense (including expenses of investigation and defense, and reasonable attorney fees and expenses) of any nature whatsoever sustained, suffered or incurred for or on account of, or arising from or in connection with any breach of any representation, warranty or covenant set forth in this Agreement, or resulting from any act or omission.
7. Term and Termination
7.1 Term of the Agreement. This Agreement commences on the Effective Date specified in the Statement of Work and remains in effect for the initial period specified in the Statement of Work (the “Initial SOW Term”), unless terminated earlier as provided herein, and, thereafter, the SOW shall automatically renew for additional periods of sixty (days) (each a Renewal SOW Term) until one Party notifies the other Party of its intent to not renew such SOW at least sixty (60) days in advance of the end of the then current Initial SOW Term or Renewal SOW Term. Notwithstanding the foregoing, the Initial SOW Term and the Renewal SOW Term may be extended by amendment through Managed360 by, for example, ordering new Services or Deliverables. At the end of the SOW Term the Statement of Work is terminated.
7.2 Termination for Convenience and Early Termination Fees. Subject to the prompt payment of the Early Termination Fees (defined below), client may terminate this Agreement for its convenience, without cause, at any time, subject to payment to ConstructEdge of an Early Termination Fees equal to one hundred percent (100%) of all remaining and reoccurring fees due for the remainder of each calendar year for the Statement of Work. The Parties specifically agree that the damages which ConstructEdge would incur arising from any breach or early termination of this Agreement or any Statement of Work in the Initial Term or any Renewal Term by Client are based upon future facts and conditions which are difficult for the Parties to presently predict, anticipate, ascertain or calculate. The Parties further agree that such liquidated damages, as determined herein, are based upon the best efforts of the parties to estimate the nature and amount of ConstructEdge’s actual damages, are not penal in nature, and are intended to place ConstructEdge in the same position it would have achieved, had this this Agreement and each Statement of Work been fully performed by the Parties according to the original terms. Client agrees to pay immediately upon such early termination the Early Termination Fees with late payment fees occurring, as provided for under Section 2.4, after ten (10) business days.
7.3 Termination for Material Breach. If either Party materially defaults in the performance of any of its obligations under this Agreement the Statement of Work, which default is not substantially cured within thirty (30) business days after notice is given to the defaulting Party specifying the default, the non-defaulting Party may terminate this Agreement and all outstanding Statements of Work as of a date specified in such notice of termination. For purposes hereof, a Party shall be deemed to be in material default if it: (a) materially breaches any of its duties, obligations or responsibilities under this Agreement; (b) becomes insolvent, is or becomes a party to any voluntary or involuntary bankruptcy or receivership proceeding or any similar action affecting the financial condition or property of such party and such proceeding has not been dismissed within thirty (30) business days of commencement; (c) ceases conducting any business necessary to carry out the provisions of this Agreement in the ordinary course; (d) makes a general assignment for the benefit of creditors; (e) violates any of the provisions of this Agreement relating to the other Party’s intellectual property or Confidential Information; or (f) fails to pay any amount owed when due. The foregoing enumeration of events constituting material default shall not be deemed exclusive.
7.4 Effect of Termination. Upon expiration or termination of this Agreement and all Statements of Work for any reason, ConstructEdge will cease to perform the Services for Client, and Client will pay to ConstructEdge all sums due to ConstructEdge or incurred through the effective date of such expiration or termination. Each Party will return any Confidential Information belonging to the other Party in compliance with Section 3.3. Client will return immediately all of ConstructEdge’s hardware, Rental Equipment, if any, and other tangibles in its possession.
7.5 Survival on Termination. Notwithstanding termination or expiration of this Agreement, the provisions is Sections 3, 4, 5, 6, 7.2-7.5, and 10 will survive for the stated length of time or indefinitely if no stated time is given.
8. Insurance
8.1 ConstructEdge’s Insurance Coverage. During the Term, ConstructEdge will, at its own cost and expense, obtain and maintain in full force and effect, with financially sound and reputable insurers, liability insurance to cover ConstructEdge’s obligations under this Agreement in the following coverage and amounts: (a)Workers’ Compensation and employers’ liability insurance with a limit of liability not less than $500,000 per accident; (b) commercial general liability insurance with a combined single limit of liability not less than $1,000,000 per occurrence; (c) automobile liability insurance for hired and non-owned vehicles with a combined single limit of liability not less than $1,000,000 per accident; and (d) excess liability insurance, with a limit of liability not less than $2,000,000 per occurrence. ConstructEdge will provide to Client certificates evidencing the specified insurance coverage upon Client’s reasonable request.
8.2 Client Insurance for Rental Equipment. Client shall, at its sole expense and at all times while any Rental Equipment is in Client’s possession, custody, control, or in transit, procure and maintain: (i) All-risk property insurance covering the full Replacement Cost (as defined in Section 1.4(d)) of the Rental Equipment with no coinsurance clause; and (ii) Commercial general liability insurance with limits of not less than $2,000,000 per occurrence. Both policies shall name ConstructEdge, Inc. and any third-party lessor designated by ConstructEdge as Additional Insured and Loss Payee with respect to the Rental Equipment and shall provide that coverage is primary and non-contributory. Client shall deliver certificates of insurance (including the Additional Insured/Loss Payee endorsements) acceptable to ConstructEdge no later than fifteen (15) days after execution of the applicable Statement of Work and upon each policy renewal. If Client fails to procure or maintain the required insurance, ConstructEdge may (but is not obligated to) obtain force-placed coverage and Client shall reimburse ConstructEdge the full premium plus a twenty-five percent (25%) administrative fee within ten (10) days of invoice.
9. Digital Millennium Copyright Act Compliance
9.1 Service Provider. ConstructEdge respects the intellectual property rights of others and expects users of its Services, including Client, to do the same. ConstructEdge is a Service Provider of Transitory Digital Network Communications, as those terms are used in the Digital Millennium Copyright Act found at 17 U.S.C. § 512. ConstructEdge transmits, routes, and provides connections for the Internet. ConstructEdge complies with all of its obligations under the Digital Millennium Copyright Act. Consistent with ConstructEdge’s obligations under § 512(i), ConstructEdge has adopted and reasonably implemented, and informs subscribers and account holders of ConstructEdge’s system or network of, a policy that provides for the termination in appropriate circumstances of ConstructEdge’s subscribers and account holders who are repeat infringers, which shall constitute a material breach under Section 7 of this Agreement; and accommodates and does not interfere with standard technical measures.
9.2 Client’s Responsibilities. Client hereby acknowledges that (i) it will take allegations of copyright infringement seriously; (ii) it recognizes its potential exposure to copyright infringement claims for actions carried out on its network; (iii) it will institute commercially reasonable technical measures to identify infringers whenever possible; and (iv) it will designate an agent with the Copyright Office to receive allegations of copyright infringement to the extent that it qualifies as a Service Provider under the Digital Millennium Copyright Act.
10. General
10.1 Entire Agreement. This Agreement and the Statement of Work set forth the entire understanding and agreement of the Parties and supersede any and all prior or contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement.
10.2 Force Majeure. ConstructEdge will have no liability to Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or the Statement of Work, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
10.3 Assignment. ConstructEdge may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Client will not assign this Agreement or the Statement of Work without the prior written consent of ConstructEdge.
10.4 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Iowa, without regard to its conflicts of law principles.
10.5 Venue. The Parties agree to promptly and voluntarily submit to the exclusive jurisdiction of the courts located in Cedar Rapids, Iowa or the United States District Court for the Northern District of Iowa located in Cedar Rapids, Iowa, with respect to any legal proceedings arising out of this Agreement, waiving all defenses with respect to jurisdiction, forum and venue.
10.6 Notices. All notices relating to this Agreement must be in writing and must reference this Agreement. Such notices shall be deemed sufficient if sent by: (i) postage prepaid registered or certified U.S. mail, then five business days after sending; or (ii) commercial courier, then at the time of receipt confirmed by the recipient to the courier on delivery. All notices to a Party will be sent to its address set forth below, or to such other address as may be designated by that Party by notice to the other Party at the addresses given in the Statement of Work.
10.7 No Waiver. Waiver by either Party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.
10.8 Severability. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted or modified, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
10.9 Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or intent of this Agreement.
10.10 Interpretation. The Parties acknowledge that they have mutually negotiated all provisions of this Agreement, and this Agreement was not drafted solely by either Party. Interpretation of the provisions of this Agreement shall not be affected by any course of dealing or performance between the Parties.
10.11 No Partnership or Agency. Nothing contained in this Agreement will be construed to place Consultant and Company in a relationship as partners, joint venturers, or principal and agent, respectively.
10.12 Counterparts. This Agreement may be executed in one or more counterparts on the signature lines in the Statement of Work, each of which will be deemed an original and all of which will be deemed to be one instrument. Electronic signatures will be relied upon as original signatures in all respects.
Updated January 2026