KonstructIQ Terms of Service

Last Updated February 2024

These KonstructIQ Terms of Service (“Terms”) govern your access and use of the KonstructIQ platform and related products and services provided through the platform (the “Services” as further defined below).

By clicking your assent to the agreement, accessing the Services, establishing an Account, or otherwise starting a Services subscription, you agree to these terms and the documents and Services-Specific Terms referenced herein (the “Agreement”). The agreement is between you and KonstructIQ, Inc. (“KIQ”, “we”, “us”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with the Agreement, you must not accept the Agreement and must not use the Services. These Terms are effective as of the date of the first instance of any one of the foregoing actions by you (“Effective Date”). You represent that you will not use the Services, directly or indirectly, for any fraudulent undertakings.

The Agreement requires you to arbitrate disputes, waives your right to a jury trial, and limits the manner in which you can seek relief. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Please read it carefully.

SCOPE.
1. Services. KIQ provides an online platform (the “Platform”) that provides Services to facilitate project management and payment for construction projects, including a variety of technology products and services to general contractors overseeing home construction projects (“General Contractors”). Such KIQ services enable subcontractors, vendors, consultants, or suppliers (“Subcontractors”) and homeowners (“Homeowners”) to interact in a variety of ways, including by: Services. KIQ provides an online platform (the “Platform”) that provides Services to facilitate project management and payment for construction projects, including a variety of technology products and services to general contractors overseeing home construction projects (“General Contractors”). Such KIQ services enable subcontractors, vendors, consultants, or suppliers (“Subcontractors”) and homeowners (“Homeowners”) to interact in a variety of ways, including by:
  1. [allowing General Contractors, Subcontractors and Homeowners (collectively, “Participants”) to share and coordinate project action items and status, budget information and accrual and payment of fees and expenses];
  2. [allowing General Contractors to place orders for services, materials or equipment provided by a Subcontractor] (“Construction Order”);
  3. [allowing Participants to request payment of a fee or service and provide information regarding receipt of payment]; and
  4. [allowing Participants to communicate regarding the project (“Participant Communications”).
  In addition, certain functionality offered through the Platform may allow Participants to access certain banking, financial or other services (“Provider Services”) from one or more third-party banks, financial institutions or other service providers (“Providers”). Certain other functionality offered through the Platform may involve orders or services with General Contractors or Subcontractors, such as Construction Orders (“Construction Services”). Some Services, Provider Services and Construction Services may be subject to additional terms as set forth in applicable Service-Specific Terms which will be made available by us, Providers, or General Contractors upon your election to use such Services, Provider Services or Construction Services (“Service-Specific Terms”).
2. KIQ is not a bank or financial services provider. Any banking or other financial services provided to a user via the Platform or Services are provided as Provider Services by one or more Providers. The Provider Services may include banking and other financial services accessed via the Platform; however, in your use of the Platform, KIQ does not perform any banking function on your behalf, including, without limitation, by holding or transmitting funds. Funds may be held or transmitted by one or more Providers for your benefit pursuant to your instructions issued via the Platform or the Service-Specific Terms applicable to such Provider Service.
3. KIQ is not a provider of Construction Services. Construction Orders you make through the Services are transactions between you and the other party only, not with KIQ or any of our Affiliates. KIQ is not the provider of any items or services offered by any General Contractor, Subcontractor or other Participant, and is not a party to any Construction Order facilitated through the Services.
4. KIQ is not a party to Payment Transactions. Payments initiated between Participants, including payments to General Contractors or Subcontractors on behalf of a Homeowner (each a “Payment Transaction”), are transactions effected by Providers between you and the other party only, not with KIQ or any of our Affiliates. KIQ is not the seller of any product or service offered by any Provider or any other Participant and is not a party to any Payment Transaction facilitated through the Services.
5. YOU UNDERSTAND THAT KIQ MAY PROVIDE YOUR CUSTOMER DATA AND INSTRUCTIONS TO PROVIDERS OR OTHER PARTICIPANTS SOLELY ON A “PASS-THROUGH” BASIS IN ACCORDANCE WITH THE AGREEMENT, APPLICABLE SERVICE-SPECIFIC TERMS, OR ANY INSTRUCTION YOU PROVIDE VIA THE SERVICES. IN SO PROVIDING YOUR INFORMATION OR INSTRUCTIONS TO A PROVIDER OR PARTICIPANT, WE ARE NOT AUTHORIZED TO INITIATE OR EXECUTE CONSTRUCTION ORDERS, PAYMENT TRANSACTIONS, FUND TRANSFERS OR OTHER TRANSACTIONS OR ORDERS AND SHALL NOT BE LIABLE THEREFOR. KIQ DOES NOT AND WILL NOT CONTROL, TRANSMIT OR HOLD YOUR FUNDS PURSUANT TO THESE TERMS.
6. Terms. The Agreement includes these Terms and Service-Specific Terms, and other terms and policies referenced or linked in the foregoing (including the User Terms), all of which are hereby incorporated herein. The Agreement does not govern any consulting, training, implementation or other professional services which are subject to additional agreements with KIQ. The Agreement applies if you are using or accessing the Platform via the Platform’s website, or any associated desktop or mobile application. Further, the Services or Platform may contain links to other websites. KIQ is not responsible for the availability of these external websites nor does it necessarily endorse the activities or services provided by these websites. Under no circumstances shall KIQ be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused in connection with your use of or reliance on any content, goods, or services available on such external websites.
CERTAIN DEFINITIONS.
1. “Affiliate” 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.
2. “Anonymized Data” means Personal Data that is in an anonymous or de-identified form that does not specifically identify you or an individual, including data that has been aggregated from multiple sources as well as indicators, metrics, analytics or scores based on such aggregated data. Anonymized Data may identify a data source by category or industry classification at a level that does not enable you any specific individual to be determined as the source.
3. “Customer Data” means any content, data, information, personal data and other materials, including budgets, estimates, and incurred fees and costs, submitted by you or an Authorized User to the Services. Customer Data excludes Usage Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation, correction, or other Feedback relating to the operation of the Services.
4. “Documentation” means the official KIQ-provided instructions, user guides, help and training manuals, descriptions of support, and other descriptive product information applicable to the Services, whether in electronic, paper, or equivalent form, as updated from time to time, including materials accessible at www.konstructiq.com or other websites designated by KIQ.
5. “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.
6. “Services” means the products and services offered by KIQ in connection with the Platform or the Agreement, including applications, mobile, software, websites or other properties operated by KIQ, and all associated Updates. The term “Services” does not include any Provider Services or Construction Services.
7. “Subscription Term” means your permitted period for using or accessing an applicable Service or Provider Service, including the initial term and any applicable renewal terms therefor.
8. “User Terms” means the general Terms of Use applicable to use by Authorized Users of websites, mobile applications and other services operated by KIQ located at www.konstructiq.com.
SERVICE-SPECIFIC TERMS.
1. Additional Terms. When you use or register for certain Services, Provider Services or Construction Services, you will also be subject to the limitations, restrictions and terms set forth in the Service-Specific Terms for such Service, Provider Service or Construction Service of which you are notified. BY ACCESSING OR USING A SERVICE, PROVIDER SERVICE OR CONSTRUCTION SERVICE COVERED BY THE SERVICE-SPECIFIC TERMS, YOU ALSO AGREE TO THE SERVICE-SPECIFIC TERMS AS OF THE DATE OF YOUR FIRST USE OR ACCESS TO SUCH SERVICES, PROVIDER SERVICES OR CONSTRUCTION SERVICES. You hereby agree to abide by all applicable Service-Specific Terms of: (i) KIQ or of any Provider associated with Provider Services which you have elected to use, and (ii) KIQ or of any Participant associated with Construction Services which you have elected to use.
2. KIQ Service-Specific Terms. Service-Specific Terms established by us are hereby incorporated into the Agreement, and the Agreement will control to the extent of any conflict with such Service-Specific Terms unless the Service-Specific Terms expressly state that they are overriding the conflicting term of the Agreement.
3. Non-KIQ Service-Specific Terms. KIQ shall be considered a third-party beneficiary of any Service-Specific Terms established by a Provider or Participant, and we shall be entitled to enforce such Service-Specific Terms against you as if such terms were part of the Agreement. Any violation by you of any Service-Specific Terms shall constitute a breach of the Agreement. KIQ shall not be considered a third party to any agreements between Participants, or between a Participant and a Provider, or those with end customers, contractors, vendors, suppliers, consultants, representatives, or third parties associated with you or Authorized Users.
4. Mobile Applications. If you download a mobile application associated with the Platform from an App Store, you are subject to any terms of use of that App Store (e.g., in the case of an iOS App, the Apple® Licensed Application End User License Agreement terms constitute Service-Specific Terms for such app).
5. Payment Processing. If you submit credit or payment card details for payment of Fees under the Agreement, such information may be submitted directly to the applicable payment processor (and not to us) and any applicable terms imposed by such provider shall be considered Service-Specific Terms with respect to such data transfer and payment processing.
6. IN NO EVENT WILL ANY THIRD-PARTY SERVICE-SPECIFIC TERMS MODIFY OR LIMIT ANY OF YOUR OBLIGATIONS OR LIABILITIES TO KIQ UNDER THE AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT KIQ IS NOT A PARTY TO OR BOUND BY THE SERVICE-SPECIFIC TERMS OF ANY PROVIDER, PARTICIPANT OR OTHER SERVICE PROVIDER OR VENDOR AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR ANY VIOLATION OF SUCH SERVICE-SPECIFIC TERMS AND YOU FULLY AND IRREVOCABLY RELEASE KIQ AND ITS AFFILIATES FROM ANY LIABILITY OR DAMAGE THEREFROM.
PROVISION OF SERVICES.
1. Access to Platform. You will need to register and create an account to access the Platform and Services (an “Account”). Through the Services you may be able to authorize your agents and representatives (“Authorized Users”) to exercise rights or control over your use of the Services through individual Authorized User Accounts. Your Account is intended for use only by you and your Authorized Users. You are not allowed to disclose your account credentials to third parties or permit others to use your usernames or passwords. You are responsible for maintaining the confidentiality of your usernames and passwords and for all activities that occur under your Account. You must notify us immediately of any breach of security or unauthorized use of your Account. You are responsible for furnishing, at your expense, any computer, networking, telecommunications and other equipment necessary for you and your Authorized Users to access the Internet and connect to the Platform. We will not be responsible for equipment or network outages or problems relating to your premises or infrastructure.
2. Access to Services. During the Term, and as long as you continue to comply with the Agreement and all Service-Specific Terms, KIQ grants you a limited, non-exclusive, non-transferable (subject to the section with the heading “Assignment” below), and non-sublicensable right to access and use the Platform and Services available to you for your internal business use in accordance with the Agreement and the Documentation. You agree that the license and use of the Platform and Services is not contingent on any future functionality or features, or dependent on any oral or written statements made by KIQ, any Provider, any KIQ General Contractor, any Subcontractor or any of their respective Affiliates related to the Agreement, including regarding future functionality or features.
3. No Fee Services. KIQ may offer certain services to you at no charge, including free accounts, free functionality, non-production services, evaluations, trial use and pre-release, pilot, limited release, developer preview or beta services (“No Fee Services”). KIQ may charge a fee for access to beta services, but the beta services will remain subject to this section as No Fee Services. Your use of No Fee Services may be subject to additional terms that KIQ specifies and is only permitted during the Subscription Term KIQ designates or, if not designated, until terminated in accordance with the Agreement. No Fee Services are not “Services” under the Agreement. However, except as otherwise set forth in this section, the terms of the Agreement governing the use rights and restrictions of Services also fully apply to No Fee Services, as well as to any Service-Specific Terms for the No Fee Services. KIQ may modify or terminate your right to use No Fee Services at any time and for any reason, in KIQ’s sole discretion, without liability to you. You understand that any pre-release, pilot, limited release, developer preview or beta services (collectively, “beta services”), and any beta features within generally available Services that KIQ makes available, are under development, may be inoperable or incomplete and may contain more errors and bugs than generally available Services. If you opt into a beta service, you agree to participate in usage and other testing and provide Feedback about such beta service, as reasonably requested by KIQ. We make no promises that any beta service will ever be made generally available. All information regarding the characteristics, features or performance of any beta service is KIQ Confidential Information. To the maximum extent permitted by applicable law, KIQ disclaims all obligations or liabilities with respect to No Fee Services warranty and indemnity obligations. No Fee Services are provided “as is,” without express or implied warranty, and without indemnity. KIQ, its Affiliates, and Providers will have no liability for, and you fully and irrevocably release KIQ, its Affiliates, and Providers from, any liability or damage arising out of or in connection with any No Fee Service. Notwithstanding anything else in the Agreement, KIQ’s maximum aggregate liability to you with respect to No Fee Services will be US$100.00.
4. Updates. KIQ may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance or functionality of the Platform or related Services (“Updates”). Updates may be automatically installed without providing any additional notice or receiving any additional consent from you, provided that Updates may be delayed if the Platform, including a mobile application, provides functionality that permits automatic Updates to be turned off. You acknowledge that you may be required to install certain Updates to continue to use certain Services following a change to the Platform. If you do not want Updates, your remedy is to stop using the affected parts of the Services or to terminate the Agreement, either in whole or in part if permitted under the Agreement and only certain Services are affected.
5. Protection of Customer Data. KIQ will maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Where your use of the Services includes the processing of data that can be used to identify a specific individual or is otherwise subject to applicable data protection laws (“Personal Data”), such use will be governed by our Privacy Policy located at www.konstructiq.com/privacy-policy (“Privacy Policy”) and the data processing addendum located at www.konstructiq.com/electronic-disclosure-and-consent (“DPA”) that is incorporated into the Agreement by this reference. You will only provide to KIQ the minimum amount of Personal Data strictly necessary to enable your use of the Services in accordance with the Agreement. YOU ACKNOWLEDGE AND AGREE THAT CUSTOMER DATA, INCLUDING PERSONAL DATA, PROVIDED TO PROVIDERS OR OTHER PARTCIPANTS IN CONNECTION WITH OR VIA THE SERVICES IS SUBJECT TO THE PRIVACY POLICIES OF SUCH PROVIDERS OR PARTICIPANTS AND THAT KIQ SHALL NOT BE LIABILE FOR THE USE OF CUSTOMER DATA BY PROVIDERS OR PARTICIPANTS. Accordingly, to the extent that Providers or Participants require compliance with or acceptance of a separate privacy policy or data processing addendum, you hereby agree and acknowledge to be bound by those requirements.
6. Usage Data. KIQ and its Affiliates, Providers, and Participants may collect, use, and otherwise process information or data related to the access or use of the Services, Provider Services, Construction Services or No Fee Services (“Usage Data”) and other Anonymized Data for their own analysis, analytics, marketing, and other internal business purposes, including, without limitation, improving KIQ’s, Provider’s, KIQ General Contractor’s or Subcontractor’s products and services, and you hereby grant us any necessary rights to do so. Examples of Usage Data include information or data on user visits, user activity, project activity, and numbers and types of clicks or impressions, as well as statistical, functional, behavioral, or other information or data based on or derived from such access or use. Except where you have expressly provided written consent, KIQ will only disclose Usage Data it collects if such data is Anonymized Data.
USE OF SERVICES.
1. Your Responsibilities. Only Authorized Users are permitted to access and use the Services. You acknowledge that KIQ or Providers or Participants may contact you and Authorized Users in connection with the Services, Provider Services or Construction Services. You will be solely responsible for:
  1. who you allow to become Authorized Users, as well as any of their actions or omissions;
  2. Authorized User’ compliance with the Agreement, the Documentation and any User Terms to which such Authorized Users assent;
  3. the accuracy and quality of Customer Data, the means by which you acquired Customer Data, and obtaining appropriate usage rights with respect to Customer Data;
  4. maintaining the confidentiality of usernames, passwords, and other Account information or access credentials;
  5. all activities that occur under your Authorized Users’ usernames, passwords, accounts or access credentials as a result of Authorized Users’ access to the Services;
  6. ensuring Authorized Users’ use the Services only in accordance with applicable Documentation;
  7. any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by you, and such will be deemed a breach of the Agreement by you;
  8. any claims, charges, or requests from Authorized Users or other Participants;
  9. your activity, communications and agreements with other Participants; and
  10. any other activity by you or Authorized Users related to or associated with the Services, Provider Services, or Construction Services.
2. Consents. You will provide disclosures to and obtain consents from Authorized Users as required under applicable Data Protection Law (as defined in the DPA) or the Privacy Policy to share Customer Data as contemplated in the Agreement, including any Service-Specific Terms. You will notify KIQ immediately of any unauthorized use of, or access to, the Services. You acknowledge that KIQ is not responsible for the accuracy, quality, completeness, or appropriateness of any Customer Data, or any orders, deliverables, pricing, invoicing or data provided by or to you, Authorized Users, Participants, or Providers, when using or accessing the Services.
3. Restrictions. You will not and will not permit others:
  1. to make any Services, Provider Services or Construction Services available to any third party other than you and your Authorized Users or other applicable Participants;
  2. to sell, resell, license, sublicense, distribute, rent, or lease any Services or Provider Services, or include any Services or Provider Services in a service bureau or outsourcing offering;
  3. to use the Services, Provider Services or Construction Services to store or transmit infringing, tortious, libelous, or otherwise unlawful material, or material that otherwise violates the rights of any third-party;
  4. to use the Services, Provider Services or Construction Services to store or transmit code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses (“Harmful Code”);
  5. to interfere with or disrupt the integrity or performance of the Services, Provider Services or Construction Services or any third-party data contained therein;
  6. to use, or permit direct or indirect access to, the Services in a way that seeks to circumvent Service use limitations;
  7. to use the Services, Provider Services or Construction Services to exploit any KIQ Intellectual Property Rights except as otherwise expressly permitted under the Agreement or the Documentation;
  8. to frame or mirror any part of the Services or Provider Services, except as permitted by and in accordance with the Documentation;
  9. to access the Services or Provider Services in order to develop a competitive product or service or benchmark with a non-KIQ product or service, or to otherwise exploit for competitive purposes;
  10. to subject to applicable law, reverse engineer, copy, or modify any software included as part of the Services or Provider Services;
  11. to use the Services, Provider Services or Construction Services for any improper, fraudulent, or other non-legitimate business purpose;
  12. to use the Services, Provider Services or Construction Services in a way that could be considered harmful, malicious, threatening, offensive, pornographic, defamatory, bigoted, hateful, indecent, or otherwise objectionable in KIQ’s reasonable discretion;
  13. to use the Services, Provider Services or Construction Services to send unsolicited communications, promotions, or advertisements in violation of the CAN-SPAM Act or any other applicable anti-spam or e-privacy law, rule, or regulation;
  14. to use any automated device or process, such as a robot, spider, datamining, web-scraping, or other means to circumvent, access, use, or integrate with the Services or Provider Services or their contents, including but not limited to other user account information;
  15. to damage, interfere, disable, or impair the Services, Provider Services or Construction Services in any way; or
  16. to use the Services, Provider Services or Construction Services in violation of applicable law.
4. Electronic Communications
  1. Transactional SMS. By using the Services and providing your email address or mobile phone number you consent to receive transactional text (SMS) messages and transactional email messages from KIQ, Providers, and Participants with whom you transact. Such communications may include, without limitation, requests for secondary authentication, receipts, reminders, order updates, and notifications regarding updates to your account or account support.
  2. Marketing SMS. KIQ, Providers and Participants with whom you interact or transact may also send you marketing and promotional communications, and valid consent will be obtained where required. Such communications may be from KIQ or the Provider or Participant you transacted with or from other businesses within that person’s group. Your consent to receive marketing SMS messages is not a condition of purchase. KIQ SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY SMS OR EMAIL MESSAGES SENT BY ANY PROVIDER OR PARTICIPANT.
  3. [Short-Code SMS. Certain Services may use short code numbers for communications. When you provide your phone number through the registration flow for the Services, you are opting-in to receive text messages that may use an SMS short code number (the “SMS Short-Code”). When you opt in for these programs, you will receive a text message to confirm your registration for notifications related to the applicable Services. If you no longer wish to receive these text messages, text “STOP” to the SMS Short-Code. After you send the message “STOP,” you will receive a reply message confirming that you have been unsubscribed. Please note that by replying “STOP,” you will be unsubscribed from receiving text messages for all of the Services using the SMS Short Code. If you would like to re-subscribe to receive notifications for any of the relevant Services, you can text or reply to the SMS Short-code with the word “Start.” If you need assistance with the programs utilizing SMS Short-Code, you can reply to the SMS Short-Code with the keyword HELP, or you can get help directly by emailing support@konstructiq.com.]
  4. General. The terms and process in this section only apply to calls, email and text messages initiated by KIQ. KIQ SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY SMS, CALL OR EMAIL MESSAGES SENT OR INITATED BY ANY PROVIDER OR PARTICIPANTS. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages sent to you Message frequency varies. Text HELP at any time for help. You may opt-out of text messages by replying STOP. You further understand and agree that you may have to opt-out for notifications related to a specific Service for which you have agreed to receive text messages, but for which you no longer wish to receive them. You acknowledge and agree that you may continue to receive text messages for a short time while your opt-out request is processed. Additionally, note that you may need to separately opt-out of marketing text messages and transactional text messages, as these may be sent by different services. You may opt-out of receiving marketing or promotional email communications we send by following the unsubscribe options on such emails. Providers control and are responsible for the content in all communications with Providers, and Participants control and are responsible for the content in Participant Communications, and KIQ does not take any responsibility or accept any liability in connection therewith. Providers and Participants are also responsible for ensuring that their communications, including Participant Communications, are only sent where legally required consent has been obtained, and KIQ does not take any responsibility or accept any liability in connection therewith. You acknowledge that opting out or unsubscribing from receiving communications may impact your use of the Services.
5. Age and Residency Requirements. The Services are only available for use by residents of the United States of America who have reached the age of 18 or the applicable age of majority in their state of residence. You are responsible for ensuring that all Authorized Users meet these requirements.
USE OF PROVIDER SERVICES, CONSTRUCTION SERVICES AND CUSTOMER DATA.
1. Provider Access to Customer Data. By using Provider Services, you permit KIQ to grant such Providers access to Customer Data or other data as required for the use and support of such Provider Services together with the Services which may include transmitting, transferring, modifying, or deleting Customer Data, or storing Customer Data on systems belonging to the Providers or other third parties. The Services may contain features provided by KIQ that are designed to interface with Provider Services. Such features provided by KIQ are “Services” under the Agreement; however Provider Services are not “Services” under the Agreement, are subject to the Provider’s Service-Specific Terms, and may require additional fees to such Providers. KIQ may cease providing interfacing features for any reason, including if the Provider ceases to make the Provider Services available for interoperation with the Services. In the event of the foregoing, you may not be entitled to any refund, credit, or compensation. Notwithstanding any obligations KIQ may have under an applicable DPA or Privacy Policy, KIQ is not responsible for the use, access or protection of Customer Data with any Provider Services or its use by or on behalf of any Providers. You are solely responsible for your decision to permit any Provider or Provider Service to access, use or process Customer Data. YOU ACKNOWLEDGE AND AGREE THAT USE OF CUSTOMER DATA, INCLUDING PERSONAL DATA, PROVIDED TO PROVIDERS IN CONNECTION WITH OR VIA THE SERVICES IS SUBJECT TO THE PRIVACY POLICIES OF SUCH PROVIDERS. KIQ DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY PROVIDER SERVICES OR FOR THE ACTS OR OMISSIONS OF ANY PROVIDERS, INCLUDING THEIR USE, PROCESSING OR DISCLOSURE OF CUSTOMER DATA OR PERSONAL DATA, AND YOU FULLY AND IRREVOCABLY RELEASE KIQ, ITS AFFILIATES, AND PROVIDERS FROM ANY LIABILITY OR DAMAGE ARISING OUT OF OR IN CONNECTION THEREWITH.
2. Participant Access to Customer Data. By using the Services, you permit KIQ to grant Participants with whom you interact with access to Customer Data or other data as required for the use and support of the Services, which may include transmitting, transferring, modifying, or deleting Customer Data, or storing Customer Data on systems belonging to Participants or other third parties. The Services may contain features provided by KIQ that are designed to interface with Construction Services or other Participant services. Such features provided by KIQ are “Services” under the Agreement; however Construction Services and other Participant services are not “Services” under the Agreement, are subject to the applicable Service-Specific Terms, and may require additional fees to certain Participants. KIQ may cease providing interfacing features for any reason. In the event of the foregoing, you may not be entitled to any refund, credit, or compensation. Notwithstanding any obligations KIQ may have under an applicable DPA or Privacy Policy, KIQ is not responsible for the use, access or protection of Customer Data with any Construction Services or its use by or on behalf of any Participant. You are solely responsible for your decision to permit any Participant to access, use or process Customer Data. YOU ACKNOWLEDGE AND AGREE THAT USE OF CUSTOMER DATA, INCLUDING PERSONAL DATA, PROVIDED TO PARTICIPANTS IN CONNECTION WITH OR VIA THE SERVICES IS SUBJECT TO THE PRIVACY POLICIES OF SUCH PERSONS. KIQ DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY CONSTRUCTION SERVICES OR FOR THE ACTS OR OMISSIONS OF ANY PARTICIPANT, INCLUDING THEIR USE, PROCESSING OR DISCLOSURE OF CUSTOMER DATA OR PERSONAL DATA, AND YOU FULLY AND IRREVOCABLY RELEASE KIQ, ITS AFFILIATES, AND PROVIDERS FROM, ANY LIABILITY OR DAMAGE ARISING OUT OF OR IN CONNECTION THEREWITH.
FEES AND PAYMENT.
1. Subscriptions. Except for No Fee Services, fees apply to use of the Services and Platform functionality (“Fees”), including in connection with some Provider Services. Applicable KIQ Fees will be identified in the schedule of applicable Fees of which you are notified when initiating a subscription or through other contact means, either online via the Platform or via email or other method permitted in the Agreement (each, a “Fee Schedule” which are hereby incorporated herein). The applicable initial Subscription Term for a subscription Service shall be the term associated with the subscription you have elected as set forth in the Fee Schedule or, if none is specified, then the initial Subscription Term shall be for one year. In the event of a conflict between the terms of the Agreement and the specific terms of a Fee Schedule, the terms of the Fee Schedule will control.
2. Subscription Term. Unless earlier terminated per the Agreement, the initial Subscription Term and any applicable renewal Subscription Terms will begin and end on the date you are provided access to the applicable Service or Provider Service. Unless otherwise specified in a Fee Schedule, your subscription will automatically renew for another time period equal to your initial Term, unless either party gives the other party notice (email is sufficient) of non-renewal at least ten business days before the end of the relevant Subscription Term or you cancel the applicable Service or Provider Service using any functionality provided via the Platform. Except as expressly set out in a Fee Schedule, one-time promotional pricing will renew at KIQ’s then-current rates. Any new Service subsequently added to an existing subscription will be coterminous with the then-current Term.
3. Fees. You will pay KIQ all fees described in each applicable Fee Schedule, and all applicable Taxes. Fees accrue monthly unless otherwise specified in a Fee Schedule. Except for KIQ’s material breach of its limited warranties below, all payment obligations are non-cancelable and Fees paid are non-refundable. KIQ may change Fees at any time (excluding Fees for a then current Subscription Term), including changing from a No Fee Service to a paid Service provided that KIQ will first provide you with notice and an opportunity to terminate your No Fee Service subscription per the Agreement. KIQ will not charge you for a previously No Fee Service unless you have been previously notified of such Fees.
4. Change in Fees. If we notify you of an updated Fee Schedule, the updated version will become effective as the Fee Schedule as of the start of the next renewal Subscription Term for an affected Service or Provider Service unless you terminate such Service or Provider Service prior to such renewal.
5. Payment Terms. All Fees will be billed in advance of the Term. You will pay all Fees, Taxes, and Overages within the time frame and in the currency in the applicable Fee Schedule, without deduction or setoff. You are responsible for providing KIQ with complete and accurate billing and contact information and updating KIQ of any changes. If you fail to pay any undisputed portion of an invoice, then (i) interest on unpaid amounts will accrue from the due date at the higher of 1.5% per month and the highest rate allowed by applicable law; and (ii) within ten (10) business days from notice of late payment, KIQ may, without limiting its rights and remedies, suspend the Services until Fees are paid in full. KIQ is not obligated to provide Services without payment of applicable Fees.
6. Provider Fees. In addition to Fees owed hereunder to KIQ, you will be responsible for any fees owed to Providers under the applicable Service-Specific Terms (“Provider Fees”). In some cases, KIQ may be responsible for passing through such Provider fees to you in KIQ’s invoice and such charges shall be considered Fees under the Agreement. In the event you fail to pay a Provider applicable Provider Fees when due, you acknowledge and agree that (i) KIQ may treat such failure as a breach of the Agreement and pursue any remedies available hereunder; and (ii) such Provider may exercise any rights available under the applicable Service-Specific Terms and KIQ will not be responsible or liable for any such remedies taken by Provider, including suspension or termination of Provider Services, and you waive and release any claims against KIQ in connection therewith.
7. Fees to Participants. In addition to Fees owed hereunder to KIQ, you will be responsible, as applicable, for any fees owed to any Participant or third party under the applicable Service-Specific Terms (“Contractor Fees”). In the event you fail to pay any Contractor Fees or others amounts owed to third parties when due, you acknowledge and agree that KIQ will not be responsible or liable for any such remedies taken by those parties, including suspension or termination of Construction Services or other applicable services, and you waive and release any claims against KIQ in connection therewith.
8. Payment Cards. If you pay KIQ by credit or debit card, you (i) will provide KIQ or its third-party payment processor with valid payment card information; and (ii) authorize KIQ or its third-party payment processor to charge such payment card for all Fees in any applicable order or invoice in accordance with the Agreement. You hereby authorize KIQ or its payment processor to store and continue billing the payment method you have on file with us, to avoid interruptions in Services purchased and to pay other Services you may buy. If you purchase a subscription, you authorize KIQ or its payment processor to automatically charge your payment method on file at the start of each Subscription Term for the applicable Fees and Taxes. Your authorization will remain in full force and effect until KIQ receives written notice of your revocation of such authorization or upon termination of the subscription provided that all of your payment obligations are satisfied.
9. Payment from Account with Provider. If you pay KIQ by debit withdrawal from a bank account established via the Provider Services or other bank, you (i) will provide KIQ or its third-party payment processor with valid account information; and (ii) authorize the applicable Provider or KIQ or its third-party payment processor to charge such account for all Fees in any applicable order or invoice in accordance with the Agreement. You hereby authorize the applicable Provider or KIQ or its third-party payment processor to store and continue billing the payment method you have on file with us, to avoid interruptions in Services purchased and to pay other Services you may buy. If you purchase a subscription, you authorize the applicable Provider or KIQ or its third-party payment processor to automatically charge your payment method on file at the start of each Subscription Term for the applicable Fees and Taxes. Your authorization will remain in full force and effect until KIQ receives written notice of your revocation of such authorization or upon termination of the subscription provided that all of your payment obligations are satisfied.
10. Purchase Orders. The terms of any purchase order, other form or agreement you provide will not modify or supplement the Agreement and will have no force or effect, regardless of KIQ’s failure to object to such terms.
11. Taxes. Fees and Overages (defined below) 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”) excluding taxes on KIQ’s income, property and employees. You are responsible for paying all Taxes associated with your purchases and orders under the Agreement. If KIQ is legally required to pay or collect Taxes that you are responsible for paying under the Agreement, KIQ will invoice you and you will pay such amounts, unless you provide KIQ with a valid tax exemption certificate. Unless prohibited by the applicable taxing jurisdiction, the tax situs will be your address associated with your Account. You will pay all Fees net of any applicable withholding taxes. The parties will cooperate to avoid withholding tax if exemptions, or a reduced treaty withholding rate are available. If KIQ qualifies for a tax exemption or reduced withholding rate, KIQ will provide you with reasonable documentary proof and you will provide reasonable evidence that you paid the relevant authority for the sum withheld or deducted.
12. Use Verification and Subscription Review. You acknowledge that KIQ, its Affiliates, or Providers may review your use of the Services and Provider Services for the purpose of verifying your compliance with the Agreement and Service-Specific Terms. You will reasonably cooperate with and assist KIQ, its Affiliates, or Providers, as applicable, in such review and verification. In addition, but no more than once annually, KIQ may initiate a subscription review by requesting copies of records evidencing your use of the Services or Provider Services and other reasonable substantiation. You will provide such records within fifteen business days, or such other mutually agreeable time frame, of KIQ’s written request. KIQ may invoice you, and you will pay, for any usage of the Services that exceeds the usage metrics (“Overages”). Overages will be invoiced at KIQ’s then-current standard rates.
PROPRIETARY RIGHTS AND LICENSES.
1. Ownership; Reservation of Rights. All KIQ Intellectual Property Rights, including Intellectual Property Rights in the Services, No Fee Services, Documentation, Usage Data, and KIQ’s Confidential Information, are and will remain owned exclusively by KIQ, its Affiliates, or Providers, each as applicable. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of KIQ will immediately vest in KIQ upon creation. Nothing in the Agreement will preclude or limit KIQ from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set forth in the Agreement, no license or other rights in or to the Services, Platform or other KIQ Intellectual Property Rights are granted to you, and all such rights are expressly reserved to KIQ, its Affiliates, or Providers.
2. Customer Data. As between KIQ and you, Customer Data and Customer’s Confidential Information are and will remain owned exclusively by you or your Authorized Users, as applicable. You hereby grant KIQ, its Affiliates, Providers, General Contractors and Subcontractors and each of the foregoing’s subprocessors, a worldwide right and license to access, host, display, process, analyze, transmit, reproduce, and otherwise use Customer Data (subject to the section in the Agreement with the heading “Protection of Customer Data”) for the purpose of providing and improving the Services in accordance with the Agreement.
3. Feedback. If you or your Authorized Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation (“Feedback”), you grant KIQ and Providers an irrevocable, perpetual, royalty-free license to freely use, reproduce, distribute, modify, incorporate, commercially exploit, and further develop such Feedback without any restrictions or attribution.
CONFIDENTIALITY.
1. Definition of Confidential Information. “Confidential Information” means all information or data disclosed by KIQ or any of its Affiliates that is confidential, proprietary, or otherwise not publicly available, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure whether oral or in writing, and disclosed during the Agreement Term in connection with the Services. Confidential Information includes (i) the Services, the No Fee Services, the Platform, and pricing, including any discussions or information related to No Fee Services; and (ii) any technical, financial, economic, marketing, strategic, business, product, design, operational, including the terms of the Agreement. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of the Agreement or any other agreement by you; (b) was known by you prior to its disclosure by KIQ or its Affiliates without breach of any obligation owed to KIQ or its Affiliates; (c) is received by you from a third party without restriction on disclosure and without breach of any obligation owed to KIQ or its Affiliates; or (d) was independently developed by you without use of or reference to any Confidential Information.
2. Protection of Confidential Information. You will (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 the Agreement; and (c) except as otherwise expressly consented to by an authorized representative of KIQ or its Affiliates, limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements with you containing protections no less restrictive than those herein. You will not disclose the terms of the Agreement to any third party other than your affiliates, contractors, legal counsel, and accountants (“Representatives”) without KIQ’s prior written consent, on condition that you will remain responsible for such Representatives’ compliance with this “Confidentiality” section. On the expiration or termination of the Agreement, you shall promptly return to KIQ all copies, whether in written, electronic, or other form or media, of the Confidential Information, or destroy all such copies and certify in writing to KIQ that such Confidential Information has been destroyed. To the extent you or your Representatives retain a copy of Confidential Information as part of its archival systems, you or your Representatives, as applicable, will retain such Confidential Information subject to these terms as long as it maintains the aforementioned copies. Your obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will survive the termination or expiration of the Agreement indefinitely, unless otherwise required by applicable law.
3. Compelled Disclosure. You may disclose Confidential Information to the extent compelled by law or legal process to do so, on condition that you give us prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at our cost, if we wish to contest the compelled disclosure.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS.
1. General Warranty. Each party represents and warrants that: (i) it has the requisite power and authority to execute, deliver, and perform their respective obligations under the Agreement and that, upon Effective Date, it shall be binding upon such party; (ii) it is duly organized, validly existing and in good standing under the laws of the country in which it is registered; (iii) it is not in violation or breach of, and its performance hereunder will not violate or breach, any other agreement, order or law to which the party or its assets are subject, and it is not a party to bankruptcy or insolvency proceedings; and (iv) the execution, delivery and performance of the Agreement by a party do not and will not: (a) conflict with, or constitute a default, now or in the future, of any agreement, instrument or other understanding to which such party is bound; or (b) result in a violation of any laws or other restriction of any court or governmental authority to which such party is subject.
2. KIQ Limited Warranties. KIQ warrants that (i) the Services will perform materially in accordance with the applicable Documentation; (ii) KIQ will not materially reduce the core functionality of the Services during the current Subscription Term without notice to you; and (iii) KIQ will use industry standard measures to deliver the Services free of Harmful Code. YOUR EXCLUSIVE REMEDY AND KIQ’S ENTIRE LIABILITY FOR A BREACH OF THE ABOVE WARRANTIES WILL BE, AT KIQ’S OPTION, (X) THE CORRECTION OF THE DEFICIENT SERVICE THAT CAUSED THE BREACH OF WARRANTY, OR (Y) PROVISION OF COMPARABLE FUNCTIONALITY. IF KIQ CANNOT ACCOMPLISH (X) OR (Y) IN A COMMERCIALLY REASONABLE MANNER, AS DETERMINED IN ITS REASONABLE DISCRETION, KIQ MAY TERMINATE THE DEFICIENT SERVICE AND REFUND YOU ANY PREPAID FEES FOR THE TERMINATED SERVICE, PRORATED TO COVER THE REMAINING PORTION OF THE SUBSCRIPTION TERM FOLLOWING NOTICE OF THE BREACH OF WARRANTY.
3. Availability. KIQ will use commercially reasonable efforts to cause the Platform and Services to be continually accessible to you, except for scheduled maintenance and required repairs, and except for any interruption due to any Force Majeure Event. IN THE EVENT OF ANY INTERRUPTION IN OR INABILITY TO ACCESS TO THE PLATFORM OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY THEREFOR) SHALL BE FOR COMPANY TO USE COMMERCIALLY REASONABLE EFFORTS TO RESUME ACCESS TO THE PLATFORM AND SERVICS AS PROMPTLY AS PRACTICABLE, AND WE SHALL NOT HAVE ANY LIABILITY IN CONNECTION THEREWITH FOR ANY MONEY DAMAGES RESULTING FROM ANY SUCH CLAIMS. In no event will we have any responsibility for the unavailability of Provider Services or your inability to access the Platform or Services due to issues arising from the hardware, systems, environment or networks of you or third-parties.
4. Your Limited Warranties. You represent and warrant that you have the authority to provide all Customer Data to KIQ, Affiliates, and Providers for use in accordance with the Terms, and that you has obtained and provided all required consents and/or disclosures to supporters regarding sharing such Customer Data with KIQ, Affiliates, and Providers.
5. Disclaimers. Except as expressly provided herein, neither party or its licensors makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each party and its licensors specifically disclaim all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement, and all warranties arising from course of dealing, usage, or trade practice to the maximum extent permitted by applicable law. Further, KIQ makes no warranty of any kind that the Services, or any products or results of the use thereof, will meet your requirements, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, or free of Harmful Code. Notwithstanding KIQ’s obligations under the DPA or the Privacy Policy, KIQ does not warrant that Services will be error-free or uninterrupted, will meet your requirements or expectations, or that its security measures will be sufficient to prevent third-party access to Customer Data.
6. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, AND, IN EACH SUCH LIMITED CASE, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION.
1. Your Indemnification. You will defend, indemnify and hold KIQ, its Affiliates, Providers, contractors, employees, agents, third party suppliers, licensors, and partners harmless against any third party claim, suit, or proceeding, and any associated losses, damages, liabilities, including legal fees and expenses, arising out of or related to (i) Customer Data or your violation of any third-party Intellectual Property Right; (ii) your use of or reliance upon any information provided by a Provider or another Participant; (iii) any transaction resulting from any Customer Data or instructions your provide via the Services or Provider Services; (iv) any instructions provided by you to another Participant or any transactions between you and a Participant; (v) your breach of the Agreement, including any Service-Specific Terms; (vi) your, including any of your Authorized User’s, use or misuse of the Platform, Services, Provider Services or No Fee Services; or (vii) your violation of any applicable law or regulation. KIQ reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify KIQ, and you agree to cooperate with KIQ in defense of these claims. KIQ will use reasonable efforts to notify you of any such claim upon becoming aware of it.
2. Indemnification Process. If a third party claim that the Platform, Services or Provider infringes any of its Intellectual Property Rights is made or appears possible, you agree to permit KIQ or its Providers (i) to modify or replace the Platform, Services, or Provider Services, or any component or part thereof, to make it non-infringing; or (ii) to obtain the right for you to continue use the Platform, Services, or Provider Services. If we or a Provider determines that neither alternative is reasonably available, we may terminate the Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you.
LIMITATION OF LIABILITY.
1. Disclaimer. KIQ and its Affiliates and Providers shall not be liable for any Customer Data or other data provided by Participants, including any errors therein, for any fund transfers or other transactions that result therefrom, or for any other reliance thereon by any entity. You acknowledge and agree that KIQ and its Affiliates will have no obligations or liability whatsoever to any third parties with which you do business, including other Participants.
2. Exclusion of Damages. Neither party nor its respective Affiliates or Providers will be liable for any loss of profits, revenues, goodwill, anticipated savings, or use, costs of substitute goods or services, or business interruption, or work stoppage, or any indirect, special, incidental, exemplary, punitive, or consequential damages, however caused, and based on any theory of liability, 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 law.
3. Limitation of Liability. A party’s and its respective Affiliates’ or Providers aggregate cumulative liability for all damages arising out of or related to the Agreement will not exceed the applicable Fees paid or payable to KIQ for the Services and attributable to the twelve month period immediately preceding the event giving rise to the liability. The existence of more than one claim will not expand this limit.
4. The liability limitations under subsections A and B of this section will not apply to (i) your obligations to pay Fees due under the Agreement; (ii) your breach of the sections of the Agreement with the heading “Use of Services” or “Confidentiality”; (iii) your violation of KIQ Intellectual Property Rights; (iv) your indemnity obligations under the Agreement; or (v) either party’s gross negligence, willful misconduct, or fraud. Nothing in the Agreement excludes or limits any liability that cannot be excluded or limited under applicable law.
TERM AND TERMINATION.
1. Agreement Term. The Agreement will begin on the Effective Date and continue until terminated as provided herein (the “Agreement Term”). If there are no active Subscription Terms, the Agreement may be terminated by either party upon thirty (30) days’ prior notice.
2. Suspension. Notwithstanding anything to the contrary, KIQ may temporarily suspend your access, and any Authorized User’s access, to any portion or all of the Services or Provider Services if: (i) KIQ or a Provider reasonably determines that (A) there is a threat or attack on any of the KIQ or Provider Intellectual Property Rights; (B) your use, or an Authorized User’s use, of the Services or Provider Services disrupts or poses a security risk to any other customer or vendor of KIQ or Provider; (C) you, or any Authorized User, is using the Services or Provider Services for fraudulent or illegal activities; (D) subject to applicable law, you ceased to continue business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) our provision of the Services to you or any Authorized User is prohibited by applicable law; or (F) provision of the Provider Services to you or any Authorized User is prohibited by applicable law; or (ii) any vendor, Provider, or Affiliate of KIQ has suspended or terminated our access to or use of any Provider Services or other third-party services or products required to enable you to access the Services or Provider Services. KIQ shall use commercially reasonable efforts to provide written notice of any suspension to you and to provide updates regarding resumption of access to the Services or Provider Services. KIQ shall use commercially reasonable efforts to resume providing access to the Services or Provider Services as soon as reasonably possible after the event giving rise to the suspension is cured. KIQ will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Authorized User may incur as a result of a suspension. In the event of your or an Authorized User’s breach of the Agreement, including without limitation for your non-payment of Fees, KIQ may, in its reasonable discretion, suspend or cancel your or an Authorized User’s access to or use of the Services or Provider Services. KIQ will use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify you or an Authorized User before taking the foregoing actions.
3. Termination.
  1. Termination for Cause: Either party may terminate the Agreement and/or any Subscription Term upon notice if the other party is in material breach of the Agreement, where such material breach is not cured (to the extent capable of being cured) within thirty (30) days after receipt of notice pursuant to the section herein with the heading “Notices” from the non-breaching party, or with immediate effect where such material breach cannot be cured. The Agreement may be terminated by either party with immediate effect if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five days.
  2. Termination without Cause: You may terminate No Fee Services immediately without cause upon written notice to us pursuant to the section with the heading “Notices” below. KIQ may also terminate No Fee Services without cause, but will provide you with at least thirty calendar days prior notice.
  3. Effect of Termination. Upon the termination of the Agreement for any reason (i) unless otherwise agreed by the parties in writing, all outstanding subscriptions and access to the Services, Provider Services, and No Fee Services will automatically terminate; (ii) you and your Authorized Users will immediately cease access and use of the Services and No Fee Services, other than for retrieval purposes provided in (iv); (iii) all outstanding payment obligations to KIQ by you will become due and payable immediately; and (iv) for thirty days following the termination of the Agreement, KIQ will make Customer Data available to you, at your request, via read-only access to the Service, solely for purpose of allowing you to retrieve Customer Data. After thirty days, KIQ will have no obligation to maintain or provide any Customer Data, and thereafter may delete or destroy all copies of Customer Data. If KIQ is required to retain a copy of Customer Data for legal purposes, such copy remains subject to the applicable protections of the Agreement.
  4. Refund or Payment upon Termination. If you terminate the Agreement due to KIQ’s material breach, KIQ will refund you the prorated portion of prepaid Fees for unused Services. If KIQ terminates the Agreement due to your material breach, you will pay any unpaid Fees in full. Termination will not relieve you of your obligation to pay any Fees for the period prior to the effective date of termination.
  5. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representation, Warranties, Exclusive Remedies, Disclaimers,” “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination of the Agreement.
4. GENERAL PROVISIONS.
  1. Modifications. KIQ MAY MODIFY THE AGREEMENT (INCLUDING ANY TERMS OR POLICIES REFERENCED HEREIN) FROM TIME TO TIME, WITH NOTICE TO YOU IN ACCORDANCE WITH THE NOTICE SECTION OR BY PRESENTING THE MODIFIED TERMS VIA THE PLATFORM OR SERVICES. Together with notice, KIQ will specify the effective date of the modifications. You can review the most current version of these Terms at any time by visiting [website] and by visiting the most current versions of the other pages referenced in the Agreement. The revised terms will become effective on the date set forth in the notice, and all other changes will become effective upon posting of the change. If you (or any Authorized User) accesses or uses the Platform, Services or Provider Services after the effective date, that use will constitute your acceptance of any revised terms and conditions. IF ANY REVISED TERM AFFECTS YOU IN A MATERIALLY ADVERSE MANNER, YOU MAY, AS YOUR SOLE REMEDY, TERMINATE THE AGREEMENT OR ANY AFFECTED SUBSCRIPTION TERM BY GIVING KIQ WRITTEN NOTICE, AND WE WILL REFUND ANY UNEARNED, PREPAID, PERIODIC USAGE FEES. IF YOU DO NOT EXERCISE YOUR TERMINATION RIGHT YOU WILL BE DEEMED TO HAVE ACCEPTED THE MODIFICATION. You must accept the modifications to continue using any No Fee Services. If you object to the modifications, your exclusive remedy is to cease using the affected No Fee Services.
  2. Publicity. You grant KIQ the right to use your company name and logo (i) in connection with providing the Services including to identify you as a user or source of invoices or payments, and (ii) as a reference for promotional purposes, subject to any trademark usage guidelines that you provide in writing to Procore. You may not use KIQ’s logos, trademarks, service marks, product names, or trade names without the prior written permission of KIQ and then only subject to the KIQ trademark usage guidelines provided to you.
  3. Export Control. Each party will comply with 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 (“Export Laws”) in connection with providing and using the Platform, Services and Provider Services. Without limiting the foregoing, (i) 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 (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; (ii) you will not, and will ensure that Authorized Users do not, violate any Export Laws, or cause any such violation to occur; and (iii) you will not use or cause any person to use the Services or Provider Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.
  4. Anti-Corruption. 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 the Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.
  5. U.S. Government Rights. If you, or any Authorized User, is a branch, agency, or instrumentality of the United States Government, the following provision applies: The Platform, Services and Documentation comprise “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3. The rights of the U.S. Government to use, commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Agreement are solely as provided in the Agreement. No additional rights are provided to the Government unless set forth in a separate written addendum.
  6. Governing Law and Venue. To the fullest extent permitted by law, the Agreement, and any claim, dispute, action, cause of action, issue, or request for relief relating to the Agreement, the Services, or Customer Data, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to the Agreement in any manner whatsoever.
  7. Dispute Resolution. The parties will attempt in good faith to promptly resolve any disputes arising out of or relating to the Agreement or the breach, enforcement, interpretation, or validity of these Terms or any part of them (“Dispute”) by negotiation between representatives of each party with the authority to resolve such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute (each, a “Dispute Notice”) and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute. If any aspect of the foregoing Dispute resolution procedure has not been met, the parties agree that (i) a court of competent jurisdiction can enjoin the filing or prosecution of any arbitration and (ii) unless prohibited by law, the arbitration administrator shall not accept or administer an arbitration or demand fees in connection with the Dispute. If the parties are unsuccessful, any Dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration (to be held in English) in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or the JAMS Consumer Arbitration Minimum Standards if it is determined by JAMS or the arbitrator that these such standards are applicable to the Dispute, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $10,000 or less, you may choose to have the arbitration conducted (1) solely on the basis of the documents submitted to the arbitrator or (2) through a non-appearance based hearing by teleconference or videoconference. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. Notwithstanding the foregoing, neither party is required to arbitrate claims (i) where all named parties seek monetary relief which, in the aggregate, qualifies as a claim that meets the requirements of an applicable small claims court; or (ii) seeking injunctive relief. However, if a small claim is transferred, removed, or appealed to a different court, either party may require that the claim be submitted to final binding arbitration. Any issue concerning the extent to which any Dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of these procedures, shall be governed by the Federal Arbitration Act and resolved by the arbitrator. Any arbitration will take place on an individual basis. THE PARTIES WAIVE THE RIGHT TO PARTICIPATE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR ARBITRATION (“CLASS ACTION WAIVER”). If this class action waiver is deemed unenforceable, the class, consolidated, or representative action will be brought in a court of competent jurisdiction. Arbitrator selection will be conducted to the extent possible under the arbitration provider’s rules, and the arbitrator will determine the location of the proceedings. Unless KIQ consents in writing, KIQ does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances. If for any reason a dispute proceeds in court, other than small claims court, rather than in arbitration, KIQ and Customer each waive any right to a jury trial and agree that any litigation will be subject to the exclusive jurisdiction of the state and federal courts sitting in the State of California (and the parties hereby submit to the personal and exclusive jurisdiction and venue of these courts). In lieu of arbitration, either you or KIQ may (1) bring an individual claim or elect to resolve a Dispute in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply (so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction) and (2) file an individual claim in court to enjoin the infringement or other misuse of its intellectual property rights, so long as any such claims are brought and maintained on an individual basis. In addition, nothing in this Agreement prohibits you or KIQ from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
  8. Notices. Any notice or communication permitted or required hereunder shall (i) be in writing and shall be delivered in person or by courier, transmitted via e-mail (provided that no notice of transmittal or delivery failure is received by the sender, and email shall not be sufficient for notices for breach, or litigation claims), or mailed by certified mail (postage prepaid, return receipt requested), and (ii) addressed (a) to us at support@konstructiq.com or [ADDRESS]; or (b) to you using the contact information that you have supplied to us in connection with your Account or use of the Platform or Services. In addition, we may provide notice to you electronically via the Platform or Services. Except as otherwise provided in the Agreement, notice is effective only upon receipt by the receiving party.
  9. Force Majeure. Neither party will be responsible or liable for any failure or delay in its performance under the Agreement (except for payment of Fees) to the extent due to any cause beyond its reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event will use reasonable efforts to mitigate against the effects of such Force Majeure Event.
  10. Assignment. You will not assign the Agreement, in whole or part, or any right or interest herein, whether by operation of law or otherwise, without the KIQ’s prior written consent, not to be unreasonably withheld, and any purported assignment will be void. KIQ may assign the Agreement without consent to an Affiliate, or in connection with a merger, consolidation, or corporate reorganization, sale of all or substantially all of its assets or business, or other change of control transaction. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  11. Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
  12. Entire Agreement; Order of Precedence. These Terms, together with any Service-Specific Terms and terms referenced or linked herein, contains the entire Agreement and understanding 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. The Agreement may only be amended or waived by a writing signed by both parties; however, KIQ may update and modify the Agreement, and Providers may update Service-Specific Terms, as necessary to comply with applicable law and regulations. 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 Fee Schedule, (3) KIQ Service-Specific Terms (other than the User Terms), (4) these Terms, (5) the User Terms, and (6) any other referenced or linked terms provided herein. Any amendment signed by both parties will take precedence over the document it amends.
  13. Miscellaneous. If a provision of the Agreement is unenforceable or invalid, the provision will be revised and interpreted so as to best accomplish the objectives of the parties as evidenced by the Agreement, and the remainder of the Agreement will continue in full force and effect. The English language version of the Agreement will be the version used when interpreting or construing the Agreement. Any notices in connection with the Agreement must be provided in English. Either party’s failure to enforce any right under the Agreement will not waive that right. [There are no third-party beneficiaries to the Agreement.]

Core

Plus & Scale

KonstructIQ Terms of Service