HomeMy WebLinkAboutCarollo Engineers 2018-02-28COU No. / / / r-47
AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES
This Agreement, made and entered into this d day of/. irJ'1 , 2018 ("Effective Date"), by
and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and Carollo
Engineers, a corporation organized and in good standing under the laws of the state of
Delaware, hereinafter referred to as "Consultant".
RECITALS
This Agreement is predicated on the following facts:
a. City requires consulting services related to the Procore Software Procurement and
Implementation for the Recycled Water Construction Project, Phases 1-3. .
b. Consultant represents that it has the qualifications, skills, experience and properly
licensed to provide these services, and is willing to provide them according to the terms
of this Agreement.
c. City and Consultant agree upon the Scope -of -Work and Work Schedule attached hereto
as Attachment "A", describing contract provisions for the project and setting forth the
completion dates for the various services to be provided pursuant to this Agreement.
TERMS OF AGREEMENT
1.0 DESCRIPTION OF PROJECT
1.1 The Project is described in detail in the attached Scope -of -Work (Attachment "A").
2.0 SCOPE OF SERVICES
2.1 As set forth in Attachment "A".
2.2. Additional Services. Additional services, if any, shall only proceed upon written
agreement between City and Consultant. The written Agreement shall be in the form of
an Amendment to this Agreement.
3.0 CONDUCT OF WORK
3.1 Time of Completion. Consultant shall commence performance of services as required
by the Scope -of -Work upon receipt of a Notice to Proceed from City and shall complete
such services within one year from receipt of the Notice to Proceed. Consultant shall
complete the work to the City's reasonable satisfaction, even if contract disputes arise or
Consultant contends it is entitled to further compensation.
4.0 COMPENSATION FOR SERVICES
4.1 Basis for Compensation. For the performance of the professional services of this
Agreement, Consultant shall be compensated on a time and expense basis not to
exceed a guaranteed maximum dollar amount of $35,233.
Std - ProtSvcsAgreement- November 20. 2(0)8
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COU No.
4.2 Changes. Should changes in compensation be required because of changes to the
Scope -of -Work of this Agreement, the parties shall agree in writing to any changes in
compensation. "Changes to the Scope -of -Work" means different activities than those
described in Attachment "A" and not additional time to complete those activities than the
parties anticipated on the date they entered this Agreement.
4.3 Sub -contractor Payment. The use of sub -consultants or other services to perform a
portion of the work of this Agreement shall be approved by City prior to commencement
of work. The cost of sub -consultants shall be included within guaranteed not -to -exceed
amount set forth in Section 4.1.
4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this
contract shall be based upon submission of monthly invoices for the work satisfactorily
performed prior to the date of the invoice less any amount already paid to Consultant,
which amounts shall be due and payable thirty (30) days after receipt by City. The
invoices shall provide a description of each item of work performed, the time expended
to perform each task, the fees charged for that task, and the direct expenses incurred
and billed for. Invoices shall be accompanied by documentation sufficient to enable City
to determine progress made and to support the expenses claimed.
5.0 ASSURANCES OF CONSULTANT
5.1 Independent Contractor. Consultant is an independent contractor and is solely
responsible for its acts or omissions. Consultant (including its agents, servants, and
employees) is not the City's agent, employee, or representative for any purpose.
It is the express intention of the parties hereto that Consultant is an independent
contractor and not an employee, joint venture, or partner of City for any purpose
whatsoever. City shall have no right to, and shall not control the manner or prescribe the
method of accomplishing those services contracted to and performed by Consultant
under this Agreement, and the general public and all governmental agencies regulating
such activity shall be so informed.
Those provisions of this Agreement that reserve ultimate authority in City have been
inserted solely to achieve compliance with federal and state laws, rules, regulations, and
interpretations thereof. No such provisions and no other provisions of this Agreement
shall be interpreted or construed as creating or establishing the relationship of employer
and employee between Consultant and City.
Consultant shall pay all estimated and actual federal and state income and self-
employment taxes that are due the state and federal government and shall furnish and
pay worker's compensation insurance, unemployment insurance and any other benefits
required by law for himself and his employees, if any. Consultant agrees to indemnify
and hold City and its officers, agents and employees harmless from and against any
claims or demands by federal, state or local government agencies for any such taxes or
benefits due but not paid by Consultant, including the legal costs associated with
defending against any audit, claim, demand or law suit.
Consultant warrants and represents that it is a properly licensed professional or
professional organization with a substantial investment in its business and that it
maintains its own offices and staff which it will use in performing under this Agreement.
Std - ProtSvcsAgreemcnt- November 20. 2008
PAGE 2017
COU No.
Consultant shall complete the services required hereunder in accordance with the
prevailing engineering standard of care by exercising the skill and ability normally
required of engineers performing the same or similar services, under the same or similar
circumstances, in the State of California.
In providing opinions of cost, financial analyses, economic feasibility projections, and
schedules for potential projects, Consultant has no control over cost or price of labor and
material; unknown or latent conditions of existing equipment or structures that may affect
operation and maintenance costs; competitive bidding procedures and market
conditions; time or quality of performance of third parties; quality, type, management, or
direction of operating personnel; and other economic and operational factors that may
materially affect the ultimate project cost or schedule. Therefore, Consultant makes no
warranty that the City's actual project costs, financial aspects, economic feasibility, or
schedules will not vary from Consultant's opinions, analyses, projections, or estimates.
Consultant shall not be responsible for the means, methods, techniques, sequences, or
procedures of construction selected by construction contractors or the safety precautions
and programs incident to the work of construction contractors and will not be responsible
for the construction contractors' failure to carry out work in accordance with the Contract
Documents.
5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely
to City. Consultant has no interest and will not acquire any direct or indirect interest that
would conflict with its performance of the Agreement. Consultant shall not in the
performance of this Agreement employ a person having such an interest. If the City
Manager determines that the Consultant has a disclosure obligation under the City's
local conflict of interest code, the Consultant shall file the required disclosure form with
the City Clerk within 10 days of being notified of the City Manager's determination.
6.0 INDEMNIFICATION
6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2
Consultant shall not begin work under this Agreement until it procures and maintains for
the full period of time allowed by law, surviving the termination of this Agreement
insurance against claims for injuries to persons or damages to property, which may arise
from or in connection with its performance under this Agreement.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office ("ISO) Commercial General Liability Coverage
Form No. CG 20 10 10 01 and Commercial General Liability Coverage —
Completed Operations Form No. CG 20 37 10 01.
2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1
"any auto" or Code 8, 9 if no owned autos and endorsement CA 0025.
3. Worker's Compensation Insurance as required by the Labor Code of the
State of California and Employers Liability Insurance.
Std — ProtSvcsAgreement- November 20. 20080
PAGE 3 OF
COU No.
4. Errors and Omissions liability insurance appropriate to the consultant's
profession. Architects' and engineers' coverage is to be endorsed to
include contractual liability.
B. Minimum Limits of Insurance
Consultant shall maintain limits no less than:
1. General Liability: $1,000,000 combined single limit per occurrence for
bodily injury, personal injury and property damage including operations,
products and completed operations. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, the
general aggregate limit shall apply separately to the work performed
under this Agreement, or the aggregate limit shall be twice the prescribed
per occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage.
3. Worker's Compensation and Employers Liability: Worker's compensation
limits as required by the Labor Code of the State of California and
Employers Liability limits of $1,000,000 per accident.
4. Errors and Omissions liability: $1,000,000 per occurrence.
C. Deductibles and Self -Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by
the City. At the option of the City, either the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects to the City, its officers,
officials, employees and volunteers; or the Consultant shall procure a bond
guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
1. General Liability and Automobile Liability Coverages
a. The City, it officers, officials, employees and volunteers are to be
covered as additional insureds as respects; liability arising out of
activities performed by or on behalf of the Consultant, products
and completed operations of the Consultant, premises owned,
occupied or used by the Consultant, or automobiles owned, hired
or borrowed by the Consultant for the full period of time allowed by
law, surviving the termination of this Agreement. The coverage
shall contain no special limitations on the scope -of -protection
afforded to the City, its officers, officials, employees or volunteers.
b. The Consultant's insurance coverage shall be primary insurance
as respects to the City, its officers, officials, employees and
volunteers. Any insurance or self-insurance maintained by the
Std — ProtSvcsAgreement- November 20. 2(0)8
PAGE 4 OF 7
COU No.
City, its officers, officials, employees or volunteers shall be in
excess of the Consultant's insurance and shall not contribute with
it.
c. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the City, its officers, officials,
employees or volunteers.
d. The Consultant's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect
to the limits of the insurer's liability.
2. Worker's Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against the City,
its officers, officials, employees and volunteers for losses arising from
Consultant's performance of the work, pursuant to this Agreement.
3. Professional Liability Coverage
If written on a claims -made basis, the retroactivity date shall be the
effective date of this Agreement. The policy period shall extend from July
2017 to July 2019.
4. All Coverages
Each Insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given to the
City.
E. Acceptability of Insurers
Insurance is to be placed with admitted California insurers with an A.M. Best's
rating of no less than A- for financial strength, AA for long-term credit rating and
AMB -1 for short-term credit rating.
F. Verification of Coverage
Consultant shall furnish the City with Certificates of Insurance and with original
Endorsements effecting coverage required by this Agreement. The Certificates
and Endorsements for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The Certificates and
Endorsements are to be on forms provided or approved by the City. Where by
statute, the City's Workers' Compensation - related forms cannot be used,
equivalent forms approved by the Insurance Commissioner are to be substituted.
All Certificates and Endorsements are to be received and approved by the City
before Consultant begins the work of this Agreement. The City reserves the right
to require complete, certified copies of all required insurance policies, at any
time. If Consultant fails to provide the coverages required herein, the City shall
have the right, but not the obligation, to purchase any or all of them. In that
Std - ProtSvcsAgreement- November 20. ZOOM
PAGE. 5 OF 7
COU No.
event, the cost of insurance becomes part of the compensation due the
contractor after notice to Consultant that City has paid the premium.
G. Subcontractors
Consultant shall include all subcontractors or sub -consultants as insured under
its policies or shall furnish separate certificates and endorsements for each sub-
contractor or sub -consultant. All coverage for sub -contractors or sub -consultants
shall be subject to all insurance requirements set forth in this Paragraph 6.1.
6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition
thereto, Consultant agrees, for the full period of time allowed by law, surviving the
termination of this Agreement, to indemnify the City for any claim, cost or liability that
arises out of, or pertains to, or relates to any negligent act or omission or the willful
misconduct of Consultant and its' agents in the performance of services under this
contract by Consultant, but this indemnity does not apply to liability for damages for
death or bodily injury to persons, injury to property, or other loss, arising from the sole
negligence, willful misconduct or defects in design by the City, or arising from the active
negligence of the City.
"Indemnify," as used herein includes the expenses of defending against a claim and the
payment of any settlement or judgment arising out of the claim. Defense costs include
all costs associated with defending the claim, including, but not limited to, the fees of
attorneys, investigators, consultants, experts and expert witnesses, and litigation
expenses.
Consultant shall not be responsible for warranties, guarantees, fitness for particular
purpose, breach of fiduciary duty, loss of anticipated profits or for economic, incidental or
consequential damages to the City of any third party arising out of breach of contract,
termination, or for any other reason whatsoever. Additionally, Consultant shall not be
responsible for acts and decisions of third parties, including governmental agencies,
other than Consultants subconsultants, that impact project completion and/or success.
References in this paragraph to City or Consultant, include their officers, employees,
agents, and subcontractors.
7.0 CONTRACT PROVISIONS
7.1 Ownership of Work. All documents furnished to Consultant by City and all documents or
reports and supportive data prepared by Consultant under this Agreement are owned
and become the property of the City upon their creation and shall be given to City
immediately upon demand and at the completion of Consultant's services at no
additional cost to City. Deliverables are identified in the Scope -of -Work, Attachment "A".
All documents produced by Consultant shall be furnished to City in digital format and
hardcopy. Consultant shall produce the digital format, using software and media
approved by City. Any reuse of completed documents or use of partially completed
documents without written verification of concurrence by Consultant for the specific
purpose intended with be at the City's sole risk and without liability of legal exposure to
Consultant.
7.2 Governing Law. Consultant shall comply with the laws and regulations of the United
States, the State of California, and all local governments having jurisdiction over this
Agreement. The interpretation and enforcement of this Agreement shall be governed by
Sid — Pro lti‘c,Avntcmcnl- Noccmbcr 21). 20118
I'A(t. ( 01 7
COU No.
California law and any action arising under or in connection with this Agreement must be
filed in a Court of competent jurisdiction in Mendocino County.
7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments
set forth the entire understanding between the parties.
7.4 Severability. If any term of this Agreement is held invalid by a court of competent
jurisdiction, the remainder of this Agreement shall remain in effect.
7.5 Modification. No modification of this Agreement is valid unless made with the agreement
of both parties in writing.
7.6 Assignment. Consultant's services are considered unique and personal. Consultant
shall not assign, transfer, or sub -contract its interest or obligation under all or any portion
of this Agreement without City's prior written consent.
7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement
shall be a waiver of any other or subsequent breach of the same or any other covenant,
term or condition or a waiver of the covenant, term or condition itself.
7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of
the Agreement; 2) because funds are no longer available to pay Consultant for services
provided under this Agreement; or 3) City has abandoned and does not wish to complete
the project for which Consultant was retained. A party shall notify the other party of any
alleged breach of the Agreement and of the action required to cure the breach. If the
breaching party fails to cure the breach within the time specified in the notice, the
contract shall be terminated as of that time. If terminated for lack of funds or
abandonment of the project, the contract shall terminate on the date notice of
termination is given to Consultant. City shall pay the Consultant only for services
performed and expenses incurred as of the effective termination date. In such event, as
a condition to payment, Consultant shall provide to City all finished or unfinished
documents, data, studies, surveys, drawings, maps, models, photographs and reports
prepared by the Consultant under this Agreement. Consultant shall be entitled to
receive just and equitable compensation for any work satisfactorily completed
hereunder, subject to off -set for any direct or consequential damages City may incur as
a result of Consultant's breach of contract.
7.9 Execution of Agreement. This Agreement may be executed in duplicate originals, each
bearing the original signature of the parties. Alternatively, this Agreement may be
executed and delivered by facsimile or other electronic transmission, and in more than
one counterpart, each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument. When executed using either alternative,
the executed agreement shall be deemed an original admissible as evidence in any
administrative or judicial proceeding to prove the terms and content of this Agreement.
7.10 Third Parties. The services to be performed by Consultant are intended solely for the
benefit of the City. No person or entity not a signatory to this Agreement shall be entitled
to rely on the Consultant's performance of its services hereunder, and no right to assert
a claim against Consultant by assignment of indemnity rights or otherwise shall accrue
to a third party as a result of this Agreement or the performance of Consultant's services
hereunder.
Std - ProfSvc,Agnement- November 20. 2000
PAGE 701'7
COU No.
8.0 NOTICES
Any notice given under this Agreement shall be in writing and deemed given when
personally delivered or deposited in the mail (certified or registered) addressed to the
parties as follows:
CITY OF UKIAH
ATTN PUBLIC WORKS
300 SEMINARY AVENUE
UKIAH, CALIFORNIA 95482-5400
CAROLLO ENGINEERS, INC
ATTN; KEN SINCLAIR
2700 YGNACIO VALLEY ROAD, SUITE 300
WALNUT CREEK, CA 94598
9.0 ASSURANCES OF CITY
The City shall furnish Consultant available studies, reports and other date pertinent to
Consultant's services; obtain or authorize Consultant to obtain or provide additional
reports and data as required; furnish to Consultant services of others required for the
performance of Consultant's services hereunder, and Consultant shall be entitled to use
and rely upon all such information and services provided by the City or others in
performing Consultant's services under this Agreement.
The City shall arrange for access to and make all provisions for Consultant to under
upon public and private property as required for Consultant to perform services
hereunder.
The parties agree that Consultant shall be included as an indemnitee and additional
insured under the indemnification and insurance requirements in any construction
contract between a contractor constructing improvements designed by Consultant and
the City.
10.0 SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement the Effective Date:
CAROLLO ENGINEERS
BY
PRINT NAME: /,may, ,
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86-0899222
Fed Tax ID No.
CITY OF UKIAH
BY:
SAGSANGIA
CITY MANAGE
ATTEST
lAt
CI Y CLERK
Std — ProfSvcsAgrecment- November 20. 2008
PAGE 8 OF 7
Date
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Date
DocuSign Envelope ID: BDA46275-8664-401 E-A6DA-935C2B94A093
PROEORE®
6309 Carpinteria Avenue
Carpinteria, CA 93013
(866) 477-6267
PROPOSED BY:
Brian Shoemaker
brian.shoemaker@procore.com
+1 (805) 755-4194
BORDER FORM FOR: Carollo Engineers, Inc. - HQ
BILL TO:
Carollo Engineers, Inc. - HQ
Duane Heise
2700 Ygnacio Valley Rd Ste 300
Walnut Creek, CA 94598
United States
accountspayable@carollo.com
SHIP TO:
SUBSCRIPTION INFORMATION:
Payment Term: Due Upon Receipt
Payment Method:
Service Start Date: February 19, 2018
Initial Term (mos): 12
Renewal Term (mos): 12
OFFER VALID THROUGH:
Carollo Engineers, Inc. - HQ
Ken Sinclair
2700 Ygnacio Valley Rd Ste 300
Walnut Creek, CA 94508
United States
ksinclair@carollo.com
February 22, 2018
SPECIAL TERMS:
Year 1
PRODUCT
BILLING
FREQUENCY
UOM
QUANTITY
PROJECT
CAP
PRICE
Construction Financials
Annual
Annual Construction
Volume ($)
22,300,000
3
S7.456.67
Project Management Essentials
Annual
Annual Construction
Volume ($)
22,300,000
3
$14,913.13
Quality & Safety
Annual
Annual Construction
Volume ($)
22,300,000
3
$11,184.79
TOTAL YEAR PRICE $33,554.59(USD)
TERMS AND CONDITIONS
All prices quoted and amounts due are in United States Dollars (USD). Prices quoted do not include taxes. By signing this Order Form ("Order Form"), I am authorized to place this order on behalf of the
Customer and agree to all payments that are due to Procore.
By signing this Order Form, Customer hereby agrees to all the terms and conditions of this Order Form and the Procore Subscription Terms ("Terms") as outlined at
www.procore.com/procore_MSA_V1_2017.pdf. The Product purchased above is further described at https://www.procore.com/downloads/slicks/Procore_ConstructionOS_ProductLine.pdf. The Order Form
and Terms constitute the entire agreement between Procore and Customer, superseding any other terms (including, but not limited to, the terms of any Customer purchase order). This Order Form's "Effective
Date" is the date of signature by Procore for the purchase of Product(s) listed above. Unless otherwise noted above, the "Service Start Date" will equal the "Effective Date". The "Service End Date" will be 12
months from the Effective Date unless otherwise noted above and will be subject to renewal as provided in the Terms.
ACH/Wire Instructions:
Account Name: Procore Technologies, Inc.
Receiving Bank: Wells Fargo Bank, N.A.
Address: 420 Montgomery, San Francisco, CA 94104 USA
Routing Number: 121000248
Account Number: 4813998051
Swift Code: WFBIUS6S
PO #: Tax Exempt
Carollo Engi
Signature:..._.Signature
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Name:
Title: Associate
2/15/2018
Date:
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Title: EVP,
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LD I ueprint
Success is at your fingertips.
Included with 1
Product Subscription
• Up to 3 sessions Virtual
11 Implementation plus
Consultation & Progress Checks
• Up to 5 hours of Custom Forms/
Tools/Workflows
• All implementation hours must
be used within first 5 weeks
Included with 2
Product Subscriptions
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1:1 Implementation plus
Consultation & Progress Checks
• Up to 10 hours Custom Forms/
Tools/Workflows
• All implementation hours must
be used within first 6 weeks
Included with 3+
Product Subscriptions
Up to 5 sessions Virtual
1:1 Implementation plus
Consultation & Progress Checks
• Up to 15 hours Custom Forms/
Tools/Workflows
• All implementation hours must
be used within first 7 weeks
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These terms, including any attached exhibits (collectively, "Terms") are entered into as of the effective
date listed on the Order Form ("Effective Date") between PROCORE TECHNOLOGIES, INC., a Delaware corporation,
having its principal place of business at 6309 Carpinteria Avenue, Carpinteria, CA 93013 ("Procore" or "Party")
and the customer identified on the Order Form ("Customer" or "Party'), collectively the "Parties."
In consideration of the mutual covenants and conditions contained herein, the Parties agree as follows:
1. BACKGROUND. Procore has developed certain construction project management Software (defined
below), to which it provides access as part of its Services (defined below). Customer wishes to enter into this
Agreement for a subscription to the Services identified on an Order Form. Procore desires to make those Services
available to Customer subject to the terms of this Agreement.
2. DEFINITIONS. The capitalized terms listed below have the following meanings:
2.1 "Agreement' means, collectively, the terms of the Order Form and these Terms.
2.2 "Authorized User' means any individual who is authorized by virtue of such individual's
relationship to, or permissions from, Customer, to access and use the Services pursuant to Customer's rights
under this Agreement.
2.3 "Construction Volume" means the aggregate dollar value of the construction work performed,
planned, or put in place by Customer for all Customer Projects during a given time period, most often a one-year
period.
2.4 "Customer Content' means any content created by or on behalf of Customer or an Authorized
User in connection with the Services and Customer Projects.
2.5 "Customer Data" means the data provided by Customer to Procore regarding Authorized
Users, including personally identifiable information.
2.6 "Customer Project" means each distinct construction project constrained by a specific scope,
budget, and schedule, as specified in a construction project agreement. The Project lifecycle phases for typical
construction projects may include initiation, planning, design, demolition, construction, commissioning, and
closeout. Procore considers projects in the construction phase to be subject to restriction in number by "project
caps" within an Order Form that specify how many simultaneous projects may be managed under the terms of a
Procore subscription. The construction phase is considered to commence with the bid and award process, and
is considered to be complete upon the project owner's written acknowledgement of substantial completion, or
the award of a certificate of occupancy from the local regulatory or governmental authority responsible for
determining substantial completion.
2.7 "Documentation" means the online screen -share demonstration materials, marketing
collateral, and other materials in written or electronic form provided to Customer by Procore in connection with
Customer's subscription to the Services.
2.8 "Enhancements" means the following: minor modifications, revisions, and corresponding
Documentation with respect to the Services, including the addition of enhancements or improved performance
made available by Procore to the Services; however, Enhancements do not include the addition of New Features
not originally included as part of the Services described on a particular Order Form.
2.9 "Maintenance Modifications" means bug fixes, patches, modifications, or revisions to the
Services that correct errors therein; however Maintenance Modifications do not include New Features not
originally included as part of the Services described on a particular Order Form.
Procore Technologies, Inc. MSA_2017_V1
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2.10 "New Features" means those significant technological or service features and/or tools that
Procore develops over time, which are offered to Customers as additional features for a fee and are distinct from
included Enhancements and Maintenance Modifications.
2.11 "Order Form" means the order form document signed by both Parties that is attached to these
Terms, on which the Customer is identified, and which specifies certain other agreed-upon terms including
Customer's specific subscription information pertaining to the Services.
Form.
2.12 "Services" means Procore's distinct services purchased by Customer as specified on the Order
2.13 "Site" means app.procore.com and all associated Procore mobile applications.
2.14 "Software" means Procore's software programs and any associated user interfaces and related
technology that Procore uses to provide the Services, and that Procore makes available pursuant to this
Agreement, including any Enhancements and Maintenance Modifications thereto.
2.15
Order Form.
"Subscription Fee" means the agreed-upon subscription fee for the Services as stated on the
3. PROVISION OF SERVICE/RESPONSIBILITIES.
3.1 Subscription Rights and Access. Procore grants Customer the nonexclusive limited -time
subscription and right to use the Services in accordance with this Agreement. Further, Procore agrees that
Customer may access and use, and permit each Authorized User to access and use, the Services for its intended
purpose, in accordance with the specifications set forth in any Documentation and subject to the terms of this
Agreement and the limits on Construction Volume, Projects, and/or other use restrictions specified on each Order
Form. Subject to Customer's payment of the fees set forth in the Order Form, Procore shall provide to Customer
the necessary passwords, security protocols and policies, and network links or connections to allow Customer
and its Authorized Users to access the Services. Procore shall provide the Customer and Authorized Users with
(a) support for the Services as outlined in Exhibit A, and (b) access to Enhancements and Maintenance
Modifications as they become available. Customer and its Authorized Users are solely responsible for ensuring
that they have sufficient and compatible hardware, software, telecommunications equipment, and Internet service
necessary for the use of the Site and Services. All other rights not expressly granted in this agreement are
reserved by Procore.
3.2 Site Updates. Procore may change, modify, upgrade, or discontinue any aspect or feature of
the Site in whole or in part. Such changes, upgrades, modifications, additions, or deletions will be effective
immediately upon notice thereof, which may be made by posting such changes to the Site. In the event Procore
modifies or discontinues any content or feature of the Site which results in reduction of functionality or degradation
of the Site, Procore shall provide comparable functionality. Procore shall, from time to time, develop New
Features, which will be offered to Customers for additional fees.
3.3 Limitations. Customer shall not, and shall not authorize or permit any Authorized User to (a)
rent, loan, or re -license rights to access and/or use the Services or Software (except as specifically provided
herein); (b) copy, modify, disassemble, decompile, or reverse engineer software included as part of the Services;
(c) share identification or password codes with persons other than Authorized Users, or permit Customer's
account to be accessed by individuals who are not Authorized Users; (d) access, use, or permit a third party to
access or use the Services or Software for purposes of competitive analysis, including the development,
provision, or use of a competing software or service or for any other purpose that may be to Procore's detriment
or commercial disadvantage; or (e) use the Services in any way not expressly provided for in this Agreement.
Customer shall be responsible for all activities that occur under Customer's account and for all actions of
Customer or its Authorized Users and both Customer and Authorized Users shall use the Services in accordance
with the Website Terms of Service. Customer shall notify Procore of any unauthorized use of Customer's
passwords or account, or any other breach of security that is known or suspected by Customer. Customer and
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its Authorized Users shall abide by all applicable local, state, national, and foreign laws and regulations in
connection with their use of the Services. Customer shall be responsible for any breach of this Agreement by its
Authorized Users.
3.4 Customer Content. Procore will process Customer Content as instructed by Customer in order
to perform the Services. The Parties acknowledge and agree that the Customer is at all times the data controller
and Procore is a data processor. Customer represents and warrants that it has all necessary rights in the
Customer Content to grant Procore the right to use, and Customer hereby grants Procore a non-exclusive,
worldwide, royalty -free and fully paid license to use, the Customer Content as necessary for Procore to provide
the Services. All rights in and to the Customer Content not expressly granted to Procore in this Agreement are
reserved by Customer. Customer represents and warrants that any Customer Content hosted by Procore as part
of the Services will not (a) infringe or violate the rights of any third party; (b) be deceptive, defamatory, obscene,
or unlawful; or (c) contain any viruses, worms, or other malicious computer programming codes intended to
damage Procore's system or data. Customer acknowledges that any use of the Services by Customer or
Authorized Users contrary to or in violation of the representations and warranties of Customer in this section
constitutes unauthorized and improper use of the Services. Customer shall have the sole responsibility for the
accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. The Parties
acknowledge that Procore does not and cannot review all Customer Content and will not be responsible for such
content, but that Procore shall have the right to delete, move, or edit any Customer Content that Procore
determines violates or might violate this Agreement, or any applicable law or regulation, or is otherwise
unacceptable.
3.5 Customer Data. Procore will process Customer Data as instructed by Customer in order to
perform the Services. The Parties acknowledge and agree that the Customer is at all times the data controller
and Procore is a data processor. Customer represents and warrants that Customer shall only provide to Procore
the minimum amount of personally identifiable information for each Authorized User to enable the Authorized
User to enjoy the benefit of this Agreement. Customer represents and warrants that Customer is entitled to
transfer relevant Customer Data to Procore so that Procore may lawfully use, process, and transfer the Customer
Data in accordance with this Agreement on Customer's behalf and Customer shall ensure the same; Customer
shall ensure that the relevant third parties, including data subjects, have been informed of, and have given their
consent to, such use, processing, and transfer as required by all applicable data protection legislation. Customer
acknowledges that Procore is reliant on Customer for direction as to the extent to which Procore is entitled to use
and process the Customer Data. Procore shall process the Customer Data only in accordance with the terms of
this Agreement and any written instructions given by Customer. Customer acknowledges and agrees that the
Customer Data may be transferred or stored in the United States of America in order to carry out the Services
and Procore's other obligations under this Agreement. Customer acknowledges and agrees that the Customer
Data may be shared with third parties only as necessary to provide the Services. Procore will not be liable for
any claim brought by an Authorized User arising from any action or omission by Procore, to the extent that such
action or omission resulted from Customer's instructions.
3.6 Customer Acknowledgement. As of the Effective Date, Customer acknowledges and agrees
that an authorized representative of Customer has evaluated the features and functionality of the Services in a
means satisfactory to Customer and accepts that the Services have been demonstrably shown to have all of the
features and functionality that have been represented to Customer. Customer agrees that its purchases
hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any
oral or written public comments made by Procore regarding future functionality or features.
3.7 Non-Procore Applications. Procore or third parties may make available third -party products
or services ("Non-Procore Applications"). Any use by Customer and any exchange of data between Customer
and the provider of Non-Procore Applications is solely between Customer and the applicable provider. Procore
does not warrant or support Non-Procore Applications or other non-Procore products or services. If Customer
installs or enables a Non-Procore Application for use with the Services, Customer hereby grants Procore
permission to allow the provider of that Non-Procore Application to access Customer's data and content as
required for the interoperation of that Non-Procore Application with the Services. Procore is not responsible for
any disclosure, modification, or deletion of any of Customer's data or content resulting from access by a Non-
Procore Application. The Services may contain features designed to interoperate with Non-Procore Applications.
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To use such features, Customer may be required to obtain access to Non-Procore Applications from their
providers, and may be required to grant Procore access to Customer's account(s) on the Non-Procore
Applications. If the provider of a Non-Procore Application ceases to make the Non-Procore Application available
for interoperation with the corresponding Service features, Procore may cease providing those Service features
without entitling Customer to any refund, credit, or other compensation.
3.8 Beta Services. From time to time, Procore may invite Customer to try certain beta services,
including pilot, limited release, developer preview, non -production, or evaluation services ("Beta Services") at
no charge. Customer may accept or decline any such trial. Beta Services will be clearly designated as such by
Procore. Beta Services are for evaluation purposes and not for production use, are not considered "Services"
under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any
Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version
of the Beta Services becomes generally available. Procore may discontinue Beta Services at any time and may
never make them generally available. Procore will have no liability for, and Customer hereby releases Procore
from, any liability or damage arising out of or in connection with any Beta Service.
4. PAYMENT.
4.1 Customer shall pay Procore all Subscription Fees specified on the Order Form upon receipt of
invoice unless otherwise stated on the Order Form. Overdue payments will be subject to a late fee of one and
one-half percent (1.5%) for each month or fraction thereof that the payment is overdue, or the highest interest
rate permitted by applicable law, whichever is lower. In addition to any other remedies available to Procore,
Procore shall be entitled to discontinue provision of the Services until all overdue amounts due are paid in full.
Except for a material breach by Procore, all payments to Procore are non-refundable and non -cancelable.
Specifically, Customer's loss of construction business or Customer's failure to use the Services will not be cause
for any refund to Customer from Procore. Customer shall reimburse Procore for Procore's collection costs
incurred in attempting to collect any late payments, including reasonable attorneys' fees.
4.2 The Subscription Fees stated on the Order Form are exclusive of any federal, state, or other
governmental taxes, duties, fees, excises, or tariffs ("Taxes") now or hereafter imposed on the Services.
Customer shall be responsible for, and if necessary shall reimburse, Procore for all such Taxes on any amounts
payable by Customer hereunder, except for taxes imposed on Procore's net income. If Procore has the legal
obligation to pay or collect Taxes for which Customer is responsible under this Section, Procore will add such
Taxes to the amount invoiced to Customer.
4.3 Procore may audit Customer's Construction Volume (as specified on the Order Form) to ensure
compliance with agreed-upon terms and pricing. Procore will give Customer at least ten (10) days advance notice
of any such audit and will conduct the audit during normal business hours in a manner that does not unreasonably
interfere with Customer's normal operations. Such audit will be at Procore's expense; however, if any such audit
should disclose any underpayment by Customer, Customer shall immediately pay Procore such underpaid
amount, together with interest thereon at the rate specified in Section 4.1, and Customer shall also pay Procore
for Procore's expenses associated with such audit. Audits are limited to one (1) per year.
5. TERM/TERMINATION.
5.1 Term. This Agreement commences on the Effective Date and will remain in effect for the initial
term specified on the Order Form ("Initial Term"), unless earlier terminated as provided herein. This Agreement
may be renewed by mutual written agreement signed by both parties (each renewal period a "Renewal
Term"). The Initial Term and any Renewal Terms are collectively referred to as the "Term".
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5.2 Termination. Either Party may terminate this Agreement upon: (1) any material breach of this
Agreement by the other Party that is not cured within thirty (30) days (or within ten (10) days in case of failure to
pay) following written notice thereof; (2) the other Party becoming insolvent or bankrupt, liquidating or being
dissolved, or ceasing substantially all of its business; or (3) a breach of section 12.3. Upon expiration or
termination of this Agreement or Services authorized in an Order Form, Customer shall immediately discontinue
all access and use of the Services. In the event Customer terminates this Agreement for a material and uncured
breach by Procore, Procore shall, as Customer's sole and exclusive remedy, refund to Customer any prepaid
but unused Subscription Fees calculated on a straight-line prorated basis for the remainder of the then -current
Term. In addition to any other remedies available to Procore, Procore may suspend Customer's or any Authorized
Users' access to the Services, at Procore's sole option, in the event of any violation of this Agreement. Upon
termination of this Agreement, Procore shall follow the data return procedures outlined in Exhibit A.
6. PROPRIETARY RIGHTS.
Procore will retain all worldwide rights in the intellectual property in and on the Site, the look and feel of the Site,
and all copyrights in and to its content. The Site is copyrighted, trademarked, or otherwise protected, and owned
or licensed by Procore. Nothing in this Agreement grants Customer or any Authorized User an express or implied
right to use any Procore intellectual property except as set forth in section 3.1 above. All proprietary rights in the
Services, including the Software as well as any aggregate usage statistics, traffic patterns, and other non -
personally identifiable data collected by Procore in connection with use of the Services, will be the sole and
exclusive property of Procore. Procore retains the royalty -free right to use any suggestions, ideas, feedback, or
other recommendations provided by Customer or Authorized Users relating to the Services. Procore may use
Customer's name and/or its logo on Procore's website and in its marketing materials to indicate that Customer
is a client of Procore. Customer hereby grants Procore the right to contact Customer and Authorized Users in
connection with their use of the Services unless otherwise stated on the Order Form.
7. WARRANTIES AND LIABILITY.
7.1 Limited Warranty. Each Party warrants that it has all necessary authority to enter into and
perform its obligations under this Agreement. Procore represents and warrants that (1) the Services will perform
in accordance with the Documentation under normal circumstances, and (2) the Services provided hereunder
will be performed in a professional manner in accordance with prevailing industry Standards. Provided that
Customer notifies Procore of any breach of the foregoing warranty during the Term, Procore shall, as Customer's
sole and exclusive remedy, provide the support services set forth in Exhibit A to this Agreement. The Services
may contain links to sites on the Internet that are owned and operated by third parties. Customer acknowledges
and agrees that Procore is not responsible for the availability of, or the content located on or through, any such
external site.
7.2 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, PROCORE DISCLAIMS ALL
OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED. PROCORE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES,
INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON -INFRINGEMENT.
PROCORE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE.
7.3 LIABILITY. PROCORE WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY,
PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE. IN ANY EVENT, ASIDE FROM ITS OBLIGATIONS IN
SECTION 8, PROCORE'S TOTAL MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL
NOT EXCEED THE AMOUNT PAID TO PROCORE BY CUSTOMER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING
SUCH CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN
THESE JURISDICTIONS, PROCORE'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE
LIMITATIONS SET FORTH IN THIS SECTION 7 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT
THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE
AGREEMENT BETWEEN THE PARTIES, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT
ABSENT THESE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS
AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
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8. INDEMNITY.
8.1 During the Term, Procore shall defend, indemnify, and hold harmless Customer against any
action claiming that the Services infringe any duly issued U.S. patent, copyright, or trademark or misappropriate
any trade secret. In addition, if the use of the Services infringes or is enjoined, or Procore believes it is likely to
infringe or be enjoined, Procore may, at its sole option: (a) procure for Customer the right to continue use of the
Services as furnished; (b) modify the Services to make them non -infringing, provided that they still substantially
conform to the applicable Documentation; or (c) if Procore, after using all commercially reasonable efforts, is
unable to accomplish the foregoing remedies, terminate this Agreement and refund to Customer any prepaid but
unused Subscription Fees calculated on a straight-line prorated basis for the remainder of the then -current Term.
The intellectual property indemnity provided herein does not apply to the extent the alleged infringement arises
from any use of the Services not in accordance with this Agreement or as specified in the Documentation or any
unauthorized modification of the Services. This section states Procore's sole and exclusive liability and
Customer's sole remedies for any threatened or actual infringement of proprietary rights.
8.2 During the Term, Customer shall defend, indemnify, and hold harmless Procore and its officers,
directors, employees, agents, successors, and assigns from and against any claims, damages, liabilities,
judgments, settlements, losses, costs, or expenses of any kind, including reasonable attorneys' fees, arising out
of (a) Customer Data, including any processing of Customer Data by Procore in accordance with this Agreement;
(b) Customer's misuse of the intellectual property rights of any third party; and (c) any Customer Content that
may violate section 3.4 of this Agreement.
9. CONFIDENTIALITY.
Each Party shall, during and after the existence of this Agreement, hold in strictest confidence and will not use
for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential
Information of the other Party. The term "Confidential Information" means all non-public information, whether
business or technical in nature, that the other Party designates as being confidential, or which, under the
circumstances of disclosure, ought to be treated as confidential. Confidential Information includes, but is not
limited to, information concerning business methods, pricing, business plans, new product launches, customer
and vendor information, internal policies and procedures, other financial information, and the terms and
conditions of this Agreement. Each Party shall not disclose Confidential Information without the prior written
consent of the other Party, except (i) as may be required by law or (ii) to its employees, contractors, or agents
who have a specific need to know such information and are under a written obligation of confidentiality at least
as restrictive as that contained in this section. Information will not be deemed confidential if it (a) was known to
the receiving Party and was acquired through proper methods, prior to its receipt from the disclosing Party, as
evidenced by written records of the receiving Party; (b) is now or later becomes (through no act or failure on the
part of the receiving Party) generally known through no breach of this Agreement by the receiving Party; (c) is
supplied to the receiving Party by a third party that is free to make that disclosure without restriction; or (d) is
independently developed by the receiving Party without use of or reference to any Confidential Information
provided by the disclosing Party. The restrictions on disclosure imposed by this section do not apply to information
that is required by law or order of a court, administrative agency, or other governmental body to be disclosed by
the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt
written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party's
expense, in seeking a protective order or other appropriate relief. Upon termination of this Agreement, each Party
shall promptly cease all further use of Confidential Information, return to the other Party all physical materials
containing Confidential Information, whether the materials were originally provided by the disclosing Party or
copied or otherwise prepared by the receiving Party, and erase or otherwise destroy any Confidential Information
kept by either Party in electronic or other non-physical form. The Parties acknowledge that the receiving Party
will not be required to return to the disclosing Party or destroy those copies of Confidential Information residing
on the receiving Party's backup or disaster -recovery systems, or which must be maintained for regulatory or
policy purposes. Such termination by either Party will not affect each Party's continuing obligations under this
section.
10. LITIGATION SUPPORT.
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Procore shall not disclose Confidential Information, Customer Content, or Customer Data to third parties, but the
restrictions on disclosure imposed by this section shall not apply to information that is required by law, subpoena,
or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party,
provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of
such order or requirement and reasonably assists the disclosing Party, at the disclosing Party's expense, in
seeking a protective order or other appropriate relief. In the event of any litigation or preparation for litigation
related to Customer's use of the Services or related projects, if Customer or any of Customer's agents or
representatives requires Procore to provide expert testimony on behalf of Customer, or to gather data, research
information, attend meetings, or perform other related services of any kind in support of Customer, Procore shall
provide such services and Customer shall compensate Procore at a reasonable rate to be determined per hour
per individual providing such services, plus all reasonable out-of-pocket expenses, including, but not limited to,
travel, lodging, and meals where necessary.
11. PRIVACY.
The Procore Privacy Policy is located at http://www.procore.com/fine-printiprivacy-policy.php and may be
amended from time to time. Any updates to the Privacy Policy will be posted to the Site and will be effective
immediately upon posting to the Site. It is Customer's responsibility to review the Privacy Policy from time to time
on the Site to ensure that Customer continues to agree with all of its terms. Customer's continued use of the Site
following the posting of changes to the Privacy Policy will mean Customer accepts those changes. If there is any
conflict between the Privacy Policy and this Agreement, this Agreement will govern.
12. GENERAL.
12.1 Waiver/Amendment. This Agreement may not be modified except by a written instrument
signed by both Parties. Failure by either Party to enforce any provision of this Agreement will not be deemed a
waiver of future enforcement of that or any other provision.
12.2 Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement, in
whole or in part, voluntarily, involuntarily, by operation of law, or otherwise without the other Party's prior written
consent; except that: (a) Procore may assign, delegate, or otherwise transfer this Agreement without such
consent in connection with any merger, consolidation, reorganization, or any sale of all or substantially all of such
Party's assets or any other transaction in which more than fifty percent (50%) of its voting securities are
transferred ("Change in Control'); and (b) Customer may assign, delegate, or otherwise transfer this Agreement
upon any Change in Control with Procore's prior written consent and subject to all of the terms of this Agreement.
Any attempt to assign, delegate, or otherwise transfer this Agreement other than in accordance with this provision
will be null and void.
12.3 Compliance with Laws. Both Parties shall comply with all applicable local, state, national, and
foreign laws, rules, and regulations including all applicable export and import laws and regulations in connection
with their performance, access, and/or use of the Services under this Agreement. Customer shall comply with all
legal duties applicable to Customer including obligations as data controller by virtue of Customer's role in
determining Authorized Users. Specifically, Customer shall provide relevant persons and/or participants with all
information Customer is required by law to provide, and, if necessary, shall obtain the consent of these persons.
The Services and derivatives thereof may be subject to export laws and regulations of the United States and
other jurisdictions. Each Party represents that it is not named on any U.S. government denied -party list. Customer
shall not permit Authorized Users to access or use the Services in a U.S.-embargoed country (currently Cuba,
Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
12.4 Governing Law/Attorneys' Fees. The rights of the Parties hereunder will be governed by the
laws of the State of California, without regard to its principles of conflicts of law. Any suits brought hereunder
must be brought in the federal or state courts serving Santa Barbara County. In the event of any claim, action, or
judicial proceeding arising under this Agreement, the prevailing Party will be entitled to recover reasonable
attorneys' fees and expenses incurred in resolving such claim, action, or judicial proceeding.
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12.5 Severability/Notice. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force. Any notice,
consent, or other communication hereunder must be in writing, and must be given personally, sent via overnight
delivery or via email with confirmation of receipt, to either Party at its respective address set forth in the Order
Form (or such other address as provided by that Party). Notices will be deemed given when delivered.
12.6 Independent Contractors. The relationship of the Parties is that of independent contractors
and nothing contained in this Agreement will be construed to make either Party an agent, partner, joint venturer,
or representative of the other for any purpose. This Agreement is for the sole benefit of the Parties and their
respective permitted successors and assigns, and nothing herein, express or implied, is intended to or will confer
upon any other person or entity any legal or equitable right, benefit, or remedy under or by reason of this
Agreement.
12.7 Force Majeure. Nonperformance of either Party will be excused to the extent that performance
is rendered impossible by any reason where failure to perform is beyond the reasonable control of the non-
performing Party.
12.8 Entire Agreement/Survival. This Agreement, together with any URLs contained herein, any
exhibits, and the Order Form(s) constitutes the entire agreement between the Parties with respect to the subject
matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the
provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals,
purchase orders, non -disclosure agreements, or Customer exhibits to this Agreement and/or vendor forms or
registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties,
or obligations of the Parties under this Agreement, regardless of any failure of Procore to object to such terms,
provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the
Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of sections 3, 4,
and 6 through 12 shall survive any termination of this Agreement.
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EXHIBIT A
SUPPORT AND MAINTENANCE
1. Service -Level Agreement.
Procore has a service -level objective for the Services of 99.9% availability, 24 hours a day, 7 days a week, 365
days a year. Downtime does not include (i) problems caused by factors outside of Procore's reasonable control,
and (ii) unavailability of the Services during scheduled maintenance.
2. Support.
During the Term, Customer and Authorized Users will have access to technical support via telephone, online
chat, email, or self -paced online tutorials. Support hours will be 5:00 a.m. to 10:00 p.m. Pacific Time ("PT")
Monday through Friday, and 10:00 a.m. to 6:00 p.m. PT Saturday and Sunday, excluding holidays. Support does
not include training sessions on the features and functionality of the Services (implementation) or training in
computer skills considered prerequisite to an individual's ability to use personal computers, the Internet/World
Wide Web, and online software.
Upon Procore's receipt of a support request, Procore will use commercially reasonable efforts to answer
questions and provide standard error corrections to known problems. In the event of any problems or errors
involving the Services that Procore cannot immediately resolve, Procore will begin working on a resolution to the
problem and will work diligently and in a commercially reasonable manner on the problem until it is resolved.
3. Data Backup and Return.
During the Term, Procore shall make commercially reasonable efforts to protect the security of Customer's data,
and shall complete daily data backups of Customer's data to an archive format that will be kept physically
separate from the Procore database and web server hardware. The Services do not replace the need for
Customer to maintain regular data backups or redundant data archives.
Procore contracts with a third -party data center provider to provide essential technology services such as network
connectivity to the Internet for the servers running the Services. Personnel access to the data center used by
Procore for these Services is restricted, and all entrances and common areas are monitored 24x7 via closed-
circuit cameras. Public access to the data center is forbidden. Fire -suppression systems are located in the data
center, and power systems in the data center are designed to run uninterrupted even in the event of a total power
outage. All servers are supplied with Uninterruptible Power Supply ("UPS") power sources that will continue to
run if utility power fails. The UPS power subsystem is fully redundant, with instantaneous fail over in case the
primary UPS fails. In the event of an extended power outage, onsite diesel generators can run indefinitely.
Generators are regularly tested to ensure functionality in the event of an emergency.
All Customer Content is the property of the Customer. Upon restriction, suspension or termination of a Customer
account, and assuming there has been no material breach of this Agreement by Customer, Procore will allow
Customer, at no additional cost, to export all of Customer Content as well any additional data that may be readily
exported from the Services to a standard electronic file format. At Procore's sole discretion, a Customer's area
within the Services may be kept active as long as the Customer is provided with "read-only" access.
4. Maintenance.
4.1 Unplanned Outages. If a system failure should occur that creates an outage of the Services,
Procore will utilize all reasonable means to end the outage as soon as possible. Outages due to the Internet,
hosting providers, and/or Customer or Authorized User systems are outside Procore's control and, in such event,
Procore will assist the Customer or Authorized User in the diagnosis but may not be able to resolve the problem.
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4.2 Preventative Maintenance. From time to time, Procore or its hosting providers will perform
preventative maintenance, such as updating servers and routers with security patches, and software upgrades.
Procore will provide notice prior to any interruption in the Services and will keep any resulting downtime
reasonable. Procore will use all reasonable efforts to perform such maintenance at hours convenient for the
Customer and Authorized Users.
Procore Technologies, Inc. MSA_2017_V1
www.procore.com