General Terms and Conditions for Services and Subscription

As of June 26, 2025

This Agreement governs Customer’s access to and use of the Active Estimating AI-powered construction cost estimation platform, as further described on the Active Estimating website at https://activestimating.com (the “Platform”). Customer’s use of the Platform, Professional Services and any other products or services provided by Active Estimating to Customer (the “Parties”) under an order form (“Order Form”) shall be governed by these General Terms and Conditions (these “Terms” and, together with any Order Forms, this “Agreement”). Capitalized terms used but not defined herein shall have the respective meanings given to them in the Order Form. 

1. Platform; Services; License.
   1. Order Forms. This Agreement will be implemented through one or more Order Forms and Customer’s purchase of the Services and use of the Platform is subject to the terms of this Agreement. In the event of a conflict between these Terms and any Order Form, these Terms shall govern unless such Order Form specifically states that such term within such Order Form supersedes these Terms. 
   2. Services; General License. Subject to these Terms and payment of all fees set forth in an Order Form (collectively, “Fees”) and any other amounts due hereunder: (a) Active Estimating will provide the Services set forth in an applicable Order Form; and (b) Active Estimating hereby grants to Customer, during the Order Form Term, a limited, non-exclusive, non-transferable license, without the right to sublicense, to have personnel of Customer authorized by Customer to use the Platform in accordance with this Agreement and who has been supplied User Credentials by Customer pursuant to Section 2.5, regardless of whether the individual is actively using the Platform at any given time (“Users”).
   3. Users access and use the Services, including, if applicable and set forth in an Order Form, via the Platform in accordance with the Platform documentation made available by Active Estimating from time to time (“Documentation”), including to create, author, develop, invent or otherwise generate (“Generate”), use, reproduce and display Customer Output, solely for Customer’s internal business purposes and not for the benefit of any other person or entity.
   4. Evaluation Services.
      1. During any Order Form Term for Services identified as “evaluation”, “pilot” or “trial” Services (“Evaluation Services”), NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (i), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND; (ii) IN NO EVENT SHALL ACTIVE ESTIMATING BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY EVALUATION SERVICES, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, FOR AN AMOUNT IN EXCESS OF FIVE HUNDRED DOLLARS ($500). 
      2. Evaluation Services are subject to the terms and conditions specified in the applicable Order Form and available only for the Order Form Term. Thereafter, Customer and Active Estimating may enter into a separate Production Services Order Form, pursuant to which Active Estimating will grant to Customer a general license to the Platform, which shall be subject to the terms of Section 1.2.
      3. Except as set forth above in this Section 1.2 or as otherwise set forth in this Agreement, the Services during the Order Form Term are subject to all other terms and conditions of this Agreement.
   5. Copies. Customer may make a reasonable number of copies of the Documentation during the Order Form Term solely for back up or disaster recovery purposes. Customer shall reproduce all copyright, trademark, trade secret and other proprietary notices in such copies. Customer may not make a copy of any aspect of the Platform other than the Documentation. Upon termination of this Agreement, Customer shall promptly destroy or return to Active Estimating, at Active Estimating’s election, all copies of the Documentation.
   6. third party Products. Customer acknowledges that the Platform may contain or be accompanied by certain software products operated, licensed or provided by a third party (“third party Products”). Any third party Product shall be subject to any applicable third party licensor terms, including those which may be set forth in a readme file, text file, installation file or similar file or folder accompanying the Platform (collectively, “third party Notices”). The third party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between any third party Notice and other portions of this Agreement, the third party Notices will take precedence, but solely as to the third party Product to which such third party Notice relates. Except to the extent expressly provided otherwise in the third party Notices, Customer acknowledges that the third party Products are licensed for use solely with the Platform and may not be used on a standalone basis or with any other product of a third party and that Sections 6.1 and 8.2 of these Terms shall not be applicable to any third party Product. ACTIVE ESTIMATING MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS. ACTIVE ESTIMATING EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY THIRD PARTY PRODUCT. CUSTOMER SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF EACH THIRD PARTY PRODUCT FOR WARRANTY AND PERFORMANCE INFORMATION. 
   7. AI Terms; Customer Output. Certain Customer Output generated through use of the Services may be generated by or utilizing artificial intelligence. Customer acknowledges and agrees that: (a) generative Artificial Intelligence sometimes produces output that is unpredictable, random, incorrect or inapplicable (“AI Hallucinations”) and such output may include biases; (b) while Active Estimating employs commercially reasonable measures designed to reduce the risk of AI Hallucinations and bias, Customer must verify the accuracy and appropriateness of any Customer Output before relying on any such Customer Output; (c) relying upon any Customer Output without review by a qualified human operator could result in unintended or harmful consequences; (d) Customer Output may bear resemblance to output Generated by other users of the Services who provide similar input, and Customer’s rights to the Customer Output generated based on Customer Content shall not be interpreted to limit the rights of other users; (e) Customer has no rights to materials that are generated from the Services for other users, regardless of any level of similarity; and (f) Active Estimating cannot control and has no duty to take any action regarding how Customer may interpret, rely on or use any Customer Output or what actions Customer may take as a result of having been exposed to Customer Output.
2. Responsibilities of the Parties.
   1. Delivery of Services. Active Estimating will use commercially reasonable efforts to assist Customer with configuration and optimization of the Platform to facilitate Customer’s use of the Platform for its business purposes, to provide Customer with the Platform and to enable the use of the Services subject to the applicable Order Form on the applicable Order Form Effective Date. 
   2. Professional Services. Active Estimating will provide Professional Services on a time-and-materials basis, unless otherwise set forth on the applicable Order Form. Customer will provide Active Estimating with: (a) reasonable assistance to facilitate scheduling and performance of Professional Services; (b) information required to perform the Professional Services; and (c) an engagement manager to help ensure effective delivery of the Professional Services. Professional Services are accepted when delivered unless otherwise set forth in the Order Form. 
   3. Support Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Active Estimating will use commercially reasonable efforts to make the Platform available twenty-four (24) hours per day, seven (7) days per week and provide to Customer technical support for the Platform during the applicable Order Form Term in accordance with Active Estimating’s generally applicable support practices applicable at the time of the performance of such services. 
   4. Add-on Features. Customer may from time-to-time request that Active Estimating develop an additional Platform feature (each, an “Add-on Feature”). In such case, the Parties will mutually agree upon the terms for development of the Add-on Feature which shall be set forth in an Order Form for Professional Services executed by both Parties which shall include applicable Fees for the development of such Add-on Feature. Upon acceptance of such Add-on Feature, Customer shall be licensed to use such Add-on Feature in accordance with the license set forth in Section 1.2. Except as expressly set forth in the applicable Order Form, Active Estimating shall be the sole owner of all right, title and interest in and to any Add-on Feature and any improvement to any Service, including any modification, alteration or enhancement made as any Add-on Feature that may be developed in accordance with this Section 2.4. Customer hereby assigns to Active Estimating all of Customer’s right, title and interest in and to any intellectual property in any Add-on Feature.
   5. User Credentials. Active Estimating shall authorize a Customer account manager to create and issue to each User, a unique username and password for access to and use of the Platform or the Platform may enable single sign-on functionality for Users (in each case, “User Credentials”). Customer and its Users are responsible for maintaining the confidentiality of all User Credentials and shall ensure that each User uses only such User’s own User Credentials, and does not share such User Credentials with any third party or other employee, agent or contractor of Customer. Customer is responsible for all use of such User Credentials and will immediately notify Active Estimating of any unauthorized use of any User Credentials. Active Estimating shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms of this Section 2.5.
   6. Customer Personnel. Customer shall ensure all Customer personnel necessary for the provision of Evaluation Services or Professional Services are reasonably available to Active Estimating. The unavailability of Customer personnel due to ordinary illness shall not be an event of force majeure as set forth in Section 11.2 and shall not relieve Customer of any of its obligations hereunder.
   7. Customer Systems. Active Estimating may from time-to-time be required to access Customer’s information technology systems, including in connection with implementation services, Professional Services and support services, and Customer shall provide Active Estimating with such access and assistance as Active Estimating may reasonably require in connection with the foregoing. Active Estimating will comply with the applicable Customer policies provided to Active Estimating in advance.
3. Fees; Taxes.
   1. Fees. During the Order Form Term, Customer shall pay to Active Estimating the Fees set forth in each Order Form or as otherwise invoiced, and reimburse Active Estimating for any costs or expenses associated with the Professional Services, subject to Active Estimating’s compliance with Customer’s policies for such costs or expenses that have been provided to Active Estimating in advance. Fees and reimbursement of costs or expenses are due and payable within ten (10) days from the date of Active Estimating’s invoice or as otherwise set forth in the Order Form. Customer will pay a late charge of one percent (1%) per month or the highest amount permitted by applicable Law, whichever is less, on any Fees or costs or expenses not paid by the due date. Unless otherwise identified in an Order Form, all Fees are stated in, and all Fees and reimbursement of costs or expenses must be paid in, United States dollars. “Law” means any declaration, decree, directive, legislative enactment, order, common law, ordinance, regulation, rule, guideline, guidance or other binding restriction or requirement of or by any governmental authority, as may be amended or replaced from time to time.
   2. Adjustments. The Fees are fixed for the duration of the Initial Term or Evaluation Services Order Form Term, as applicable, and are subject to change for any subsequent Renewal Term. Active Estimating shall provide Customer at least sixty (60) days’ prior notice of any change to the Fees for a Renewal Term. 
   3. Taxes. The Fees do not include do not include additional charges that may apply in a particular jurisdiction including applicable taxes or other regulatory fees. Customer will pay all international, national, federal, state, provincial or local sales, use, value added, goods and services, property, excise, or other taxes imposed on or with respect to this Agreement, except for any taxes imposed on the income of Active Estimating. If any sales, use, value added, goods and services, property, excise, or other taxes (except for taxes based on Active Estimating’s net income) are assessed against or required to be collected in connection with the Services, Active Estimating will include such amounts on each invoice.
   4. Payment Processor. Active Estimating may use third party payment processor services to bill or facilitate processing of Fees. By submitting payment account information, Customer grants to Active Estimating and its payment processor the right to store and process Customer’s information with the third-party payment service, which may change from time to time. Customer agrees that during any Order Form Term, Active Estimating may charge and the payment processor may pay to Active Estimating any periodic Fees as they become due. Any payment processor services will be subject to the payment processor’s separate terms and conditions in addition to this Agreement. In no event will Active Estimating be responsible for any action or omission of any payment processor, including as to whether any payment is sent or received or sent or received to a party other than the intended party. 
4. Intellectual Property.
   1. Platform; Content. The Platform includes functionality and tools designed to enable Customer and its Users to submit construction project details to the Platform to generate construction cost estimates (“Estimates”) based on such information or other content, data or information that Customer or its Users upload to or process on or through to the Platform in the course of using the Platform and Services (“Customer Content”) and, if applicable, to incorporate such automations into Customer’s information technology systems. The Estimates and other content generated and produced by Customer and its Users through the Platform are referred to herein as the “Customer Output.” To the extent that any Active Estimating IP (as defined below) or other content that is not Customer Content made available through the Platform (collectively, “Active Estimating Content”) are incorporated into the Customer Output using the Platform, Active Estimating grants Customer a non-exclusive, royalty-free, perpetual, worldwide, non-transferable, non-assignable and non-sublicensable right and license to use such Active Estimating Content or other content solely as integrated into or embodied by the Customer Output.
   2. Ownership. As between Customer and Active Estimating, Customer will own all right, title and interest in and to the Customer Content and Customer Output. Customer grants Active Estimating a royalty-free, non-exclusive, perpetual, irrevocable license to use the Customer Content: (a) to provide the Services; (b) to exercise its rights hereunder; and (c) for the purposes set forth in this Section 4.2. Active Estimating will own all right, title and interest in and to: (i) the Platform and any Active Estimating software and documentation used in providing or related to the Platform, and all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other technology developed by or for Active Estimating in connection with the Platform; and (iii) any intellectual property rights in or related to any of the foregoing (the foregoing (i), (ii) and (iii), collectively, “Active Estimating IP”) Active Estimating and its third party licensors will also own all right, title, and interest in and to the Active Estimating pre-automated workflow libraries. Customer acknowledges that the Platform and Services, and all intellectual property rights therein are the sole and exclusive property of Active Estimating or its licensors. All inventions, works of authorship or other developments conceived, written or otherwise Generated by or for Active Estimating, whether solely or jointly, related to the Platform and Services are the sole property of Active Estimating.
   3. Restrictions. Customer shall not, directly or indirectly, and shall not allow any User or other third party to: (a) use any of Active Estimating’s Confidential Information to create any service, software, documentation or data that is similar to or competes with any aspect of the Services; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or any underlying algorithm or idea from the Services; (c) circumvent or violate any technical restriction of the Services; (d) make any copies of the Services or any portion thereof or any Documentation, except as otherwise authorized herein; (e) disclose the Services or any portion thereof, or any Documentation to any third party; (f) sublicense, rent, lease, lend or host the Platform to or for other any third party; (g) attempt to unlock or bypass any initialization system, encryption method or copy protection devices in the Services; (h) alter, remove or obscure any patent, trademark or copyright notice in the Platform or Documentation; (i) use components of the Services independent of the Services; (j) post, send, process or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including violating any third party’s rights using the Platform; (k) use the Services to perform any activity which does or may violate any applicable Law, or is or may be, directly or indirectly, harmful, threatening, abusive, harassing, tortious or defamatory, or to perform any activity which violates the rights of any third party; (l) use any Confidential Information of Active Estimating to contest the validity of any intellectual property of Active Estimating; (m) publish or disclose to any third party any evaluation of the Platform; (n) interfere with or disrupt the integrity or performance of the Services; or (o) use any Active Estimating Content or Customer Output for purposes of training, validation of, testing of, or any other development of, any artificial intelligence or other machine learning technologies. 
   4. No Sale. The license granted hereunder and any grant of rights to the Platform is not a sale of the Platform or any portion thereof and this is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code). Except for the express license set forth in these Terms, these Terms do not grant to Customer any license, by implication, estoppel or otherwise. 
   5. Feedback. If Customer elects to provide Active Estimating with any suggestion, ideas for improvement, recommendations or other feedback (collectively, “Feedback”), Active Estimating all rights, title and interest in and to any such Feedback and Customer will and hereby does assign to Active Estimating all of Customer’s right, title and interest in and to such Feedback. 
   6. Improvement. Active Estimating has the right to collect and analyze data relating to the provision, use or performance of any Service other than Customer Content (except as set out in Section 4.7), and Active Estimating may: (a) use such data to improve any Service or for other development, diagnostic or corrective purposes in connection with any Service or to develop other Active Estimating offerings; (b) disclose such data solely in aggregate or de-identified form; and (c) use any such improvement or make any such disclosure without limitation hereunder.
   7. Customer Content. As between the Parties, Customer is the sole and exclusive owner of Customer Content. Customer hereby grants to Active Estimating a non-exclusive, irrevocable, royalty-free, fully paid, worldwide license to process, display, modify, distribute, store and otherwise use Customer Content for the purposes of providing the Services to and Generating Customer Output for Customer during the Order Form Term. Customer shall be solely responsible for the accuracy, quality, integrity, legality, appropriation of and the right to use any Customer Content hereunder. Customer shall be responsible for obtaining any consent or other right necessary to process, store or otherwise use any Customer Content. 
   8. Aggregated Data; Services Improvements. Customer hereby grants to Active Estimating a perpetual, non-exclusive, irrevocable, royalty-free, fully paid, worldwide license to process, display, modify, distribute, store and otherwise use Customer Content to: (a) create aggregate and de-identified compilations of Customer Content combined with the data and input of other customers of Active Estimating (“Aggregated Data”); (b) Generate analyses, reports and other information processed from metadata relating to Customer Content for any purpose perpetually (“Analyses”); and (c) improve the Platform through application of Artificial Intelligence, tuning or any enhancement, modification, derivative or other improvement to the Platform in connection with the provision of any Service (“AI Improvements”). Customer further agrees that, in the ordinary course of Artificial Intelligence development, as part of such AI Improvements, Active Estimating may extract and retain patterns from Customer Content processed in connection with this Agreement which do not identify Customer and do not enable reconstruction of the Customer Content (“Patterns”) and use, copy, prepare derivative works of or otherwise exploit any such Pattern to continue to improve the Platform, or successor product or service, in perpetuity. All AI Improvements, Aggregated Data and Analyses arising from this Agreement shall be the sole and exclusive property of Active Estimating. Active Estimating will not distribute Aggregated Data or Analyses in a manner that is identifiable as Customer Content.
   9. Data Retention. Customer acknowledges and agrees that while the Platform is designed to retain all Customer Content and to display Customer Output to Users during an Order Form Term, the Platform is not a storage service and Customer, not Active Estimating, is solely responsible for backing up all Customer Content and any Customer Output. Without limiting the foregoing in this Section 4.9, Active Estimating will use commercially reasonable efforts to retain and make available any Customer Content in its control for at least thirty (30) days, or such period as set forth in the applicable Order Form, following the end of the applicable Order Form Term.
5. Confidentiality.
   1. Confidential Information. Each Party may from time to time disclose confidential information to the other Party in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise (“Confidential Information”). Customer Content and Customer Output shall be deemed to be the Confidential Information of Customer. The Platform, any Feedback and any information regarding Fees shall each be deemed to be Confidential Information of Active Estimating. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the receiving Party; (b) is received by the receiving Party from a third party not subject to any confidentiality obligation in favor of the disclosing Party; or (c) is independently developed by the receiving Party without access or reference to Confidential Information of the disclosing Party.
   2. Obligations. The receiving Party agrees to safeguard all Confidential Information of the disclosing Party with at least the same degree of care (which in no event shall be less than reasonable care) as the receiving Party uses to protect its own Confidential Information. The receiving Party shall not use any Confidential Information of the disclosing Party for any purpose other than in furtherance of this Agreement and shall not disclose any Confidential Information of the disclosing Party except to those of its employees, consultants or representatives with a “need to know” such Confidential Information for purposes of fulfilling its obligations under this Agreement and who are bound by confidentiality obligations at least as stringent as those set forth herein. The receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative as if made by the receiving Party. The receiving Party shall promptly notify the disclosing Party of any breach of this Section 5.2. 
   3. Permitted Disclosures. Notwithstanding Section 5.2, the receiving Party may disclose Confidential Information of the disclosing Party to the extent that the receiving Party is required or requested to do so pursuant to applicable Law by any governmental authority or rules of a stock exchange; provided, however, that prior to any such disclosure, the receiving Party shall: (a) assert the confidential nature of the Confidential Information of the disclosing Party to such governmental authority or stock exchange; (b) promptly notify the disclosing Party of the governmental authority’s requirement or request to disclose; and (c) cooperate with the disclosing Party in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the disclosing Party. 
6. Representations and Warranties.
   1. Active Estimating Representations and Warranties. Active Estimating represents and warrants to Customer that: (a) the Platform and the Services shall perform materially in accordance with the Documentation, provided that, as Customer’s sole and exclusive remedy in the event of a breach of such warranty, Active Estimating shall use commercially reasonable efforts to correct any failure to comply with such warranty; and (b) Customer will comply with all applicable Laws in connection with its use of any Service.
   2. Customer Representations and Warranties. Customer represents, warrants and covenants to Active Estimating that: (a) Customer has the right to provide the Customer Content to Active Estimating and to permit Active Estimating to access any systems of Customer that host any Customer Content, for the purposes of this Agreement; and (b) Customer will comply with all applicable Laws in connection with its use of any Service or Customer Output, including any applicable securities Laws, U.S. Export Administration Regulations, anti-corruption Laws and U.S. embargoes, as well as any Laws of any jurisdiction outside of the United States where the Platform or any Service or Customer Output is used. 
   3. Disclaimer. ACTIVE ESTIMATING DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION, OR THAT ACTIVE ESTIMATING WILL CORRECT ANY ERROR. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE”. ACTIVE ESTIMATING AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM OR SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. 
7. Limitation of Liability.
   1. SUBJECT TO SECTION 7.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, PROFITS, REVENUES OR USE OF THE SERVICE, OR FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR THE PLATFORM.
   2. SUBJECT TO SECTION 7.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, FOR AN AMOUNT IN EXCESS OF THE AGGREGATE FEES PAID TO ACTIVE ESTIMATING IN RESPECT OF THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE MOST RECENT CLAIM UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE. 
   3. The limitations and exculpations of liability set forth in Sections 7.1 and 7.2 shall not apply in respect of: (a) any breach of Sections 1 or 5; (b) a Party’s indemnification obligations set forth in Section 8; (c) any Fees owed hereunder; or (d) a Party’s infringement of the other Party’s intellectual property rights, but shall otherwise apply to the maximum extent permitted by applicable Law. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS AND EXCULPATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 ARE AN ESSENTIAL BASIS OF THE BARGAIN AND THAT, ABSENT SUCH LIMITATIONS AND EXCULPATIONS, THE FEES WOULD HAVE NECESSARILY BEEN MUCH HIGHER. 
8. Indemnification.
   1. Customer Indemnification. Subject to Section 8.4, Customer hereby agrees to defend, indemnify and hold harmless Active Estimating and its affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable attorneys’ fees) (collectively, “Losses”) suffered or incurred by any of them directly or indirectly arising from or in connection with any third party demand, allegation, action, suit, investigation or proceeding or any other claim or demand (collectively, “Claims”) arising from or related to: (a) any failure by Customer to comply with any applicable Laws; (b) any gross negligence or intentional misconduct of Customer; or (c) the inaccuracy, untruthfulness or breach of any representation, warranty or covenant set forth in Section 6.2.
   2. Active Estimating Indemnification. Subject to Sections 8.3 and 8.4, Active Estimating hereby agrees to defend, indemnify and hold harmless Customer and its affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with third party Claims arising from or related to: (a) the gross negligence or intentional misconduct of Active Estimating; or (b) the Platform infringing a United States patent, copyright, trademark or trade secret of such third party. If Customer’s use of the Platform is, or in Active Estimating’s opinion is likely to be, found to infringe, Active Estimating may, in its sole discretion: (i) modify the infringing element of the Platform to be non-infringing without materially degrading the functionality of the Platform; (ii) procure for Customer the right to continue using the Platform; or (iii) terminate the affected Order Form and refund to Customer the pro rata portion of any prepaid Fees associated with the Platform for any unused portion of the applicable Order Form Term. THIS SECTION 8.2 SETS FORTH ACTIVE ESTIMATING’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE PLATFORM OR SERVICES.
   3. Exceptions. The defense and indemnification obligations of Active Estimating shall not apply to the extent the alleged infringement arises out of: (a) use of any Service by Customer in combination with products or software not provided by Active Estimating; (b) any modification, alteration or enhancement of any Service not created by or on behalf of Active Estimating with Active Estimating’s prior written consent; (c) failure to implement the latest release of the Platform; or (d) any matter indemnified by Customer in Section 8.1. 
   4. Indemnity Conditions. As a condition to the indemnity obligations of a Party hereunder, the indemnified party shall: (a) provide prompt notice of any indemnifiable claim; (b) tender the defense of such claim to the indemnifying Party at the indemnifying Party’s request; (c) cooperate with the indemnifying Party in the defense of such claim at the indemnifying Party’s expense; and (d) not settle or compromise any such claim without the consent of the indemnifying Party. Customer will immediately inform Active Estimating as soon as Customer becomes aware of any threatened or actual Claim by any third party relating to the Platform or Services. The indemnifying Party shall pay all Losses incurred by the indemnified Party in connection with any such Claim.
9. Term; Termination.
   1. Term. This Agreement commences on the Order Form Effective Date of the first Order Form and continues until the date that is the later of: (a) the one (1) year anniversary of the Order Form Effective Date for the first Order Form; or (b) such later date as there is no then-active Order Form. This Agreement may be terminated by either Party if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after notice of such breach, effective as of the date set forth in such notice.
   2. Irrevocability. Customer’s order for Services as set forth in an Order Form is irrevocable in all respects, subject only to termination in accordance with this Agreement. By executing the Order Form, Customer agrees to pay all Fees set forth therein for the Order Form Term. In the event that Customer fails to pay any Fees or other amount payable to Active Estimating hereunder when due, Active Estimating may immediately suspend the provision of Services until Customer has paid all past-due and outstanding amounts in full. 
   3. Effect of Termination. Upon termination of this Agreement: (a) Customer will immediately cease use of the Platform and promptly return or destroy all copies of the Documentation; (b) all amounts owing, including Fees for Services rendered up to the effective date of such termination will be immediately due and payable; and (c) each Party will promptly return or destroy any Confidential Information of the other Party. 
   4. Survival. Sections 1.4(a), 1.7, 2.4, 3, 4, 5, 6.3, 7, 8, 9.3, 9.4, 10 and 11 will survive termination of this Agreement or any Order Form.
10. Arbitration
    1. Scope; Governing Rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”), including, if appropriate, the International Commercial Arbitration Supplementary Procedures. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
    2. Proceedings. The seat or place of arbitration shall be San Francisco County, California, USA. The arbitration shall be conducted and the award shall be rendered in the English language The award rendered by the arbitrator shall be final and binding on the Parties and may be entered and enforced in any court having jurisdiction, and any court where a Party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable.
    3. Confidentiality. Except as may be required by law, neither a Party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both Parties, unless to protect or pursue a legal right.
11. Miscellaneous.
    1. Notices. Any communication, demand, approval, consent or other notice from one Party to the other Party required to be given under this Agreement shall be in writing and personally delivered, sent via certified mail, postage prepaid and return receipt requested, sent via internationally recognized courier service or sent via email with a copy sent by one of the other previous means, to the other Party at the address set forth on the applicable Order Form or such other address as either Party may from time to time designate in writing to the other Party. No change of address shall be binding upon the other Party until notice thereof is received by such Party. Each notice shall be in English. Each notice shall be effective: (a) on personal delivery; (b) five (5) days after delivery by certified mail, postage prepaid and return receipt requested; (c) two (2) business days after being sent via internationally recognized courier service; or (d) the next business day after being sent via email with a copy sent by one of the other previous means. This Section 11.1 will not apply to communication between the Parties made in the ordinary course of business.
    2. Force Majeure. Except for Customer’s payment obligations, neither Party is responsible for any delay or failure to perform resulting from any cause beyond such Party’s reasonable control, which may include, but is not limited to, any act of God, fire, hurricane, flood, terrorism, act of war, labor disturbance, telecommunications failure, utility failure, network failure, pandemic, act of governmental authorities or change of applicable Laws.
    3. Assignment. Customer is not permitted to transfer or assign (by operation of law or otherwise) any of its rights or obligations under this Agreement without the prior consent of Active Estimating, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without Active Estimating’s consent will be void and of no force and effect.
    4. Publicity. Customer hereby grants to Active Estimating a worldwide, non-exclusive, royalty-free, non-transferable license to use Customer’s trademarks, service marks or logos for the purpose of identifying Customer as an Active Estimating customer in order to promote the Platform and consents to such identification. Customer may revoke such consent at any time by providing notice to Active Estimating a contactus@activeestimating.com. Except as set forth in this Section 11.4, neither Party will use the name of the other Party in publicity releases or similar activity without the consent of the other Party.
    5. Remedies. Notwithstanding any other provision of this Agreement, each Party agrees that any breach of Sections 4 or 5 may cause the other Party irreparable and immediate damage for which monetary remedies may be inadequate. Therefore, each Party agrees that, in addition to any other remedy to which the other Party may be entitled hereunder, at law or in equity, the other Party shall be entitled to seek injunctive relief and other equitable relief in any court of competent jurisdiction, without the posting of any bond and without proof of actual damages, to restrain such use in addition to any other applicable remedy available under applicable Law. Nothing in this Section 11.5 shall be interpreted as limiting the powers of the arbitrator with respect to any dispute subject to arbitration under this Agreement.
    6. Governing Law and Venue. This Agreement will be governed by, and construed in accordance with, the Laws of the State of California, USA, without giving effect to the conflict of Laws principles thereof. Subject to Sections 10 and 11.5, each Party consents to the exclusive jurisdiction of federal or state courts located in the State of California, USA to resolve any dispute hereunder.
    7. Severability. If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.
    8. Independent Contractor. Each Party will act as an independent contractor and employees of one Party will not be considered to be employees of the other Party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither Party may make any commitments binding on the other Party, nor may either Party make any representation that they are acting for, or on behalf of, the other Party.
    9. Interpretation. Captions and headings contained in these Terms have been included for ease of reference and convenience and shall not be considered in interpreting or construing these Terms. Except where the context expressly requires otherwise: (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, including each Order Form that references these Terms; and (e) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or”.
    10. Entire Agreement. This Agreement, including these Terms and any Order Forms, and all appendices, exhibits, schedules and attachments thereto and hereto, constitutes the sole and complete agreement between the Parties with regard to its subject matter. This Agreement may not be modified or amended except by a writing signed by both Parties, and supersedes all proposals, understandings, representations, prior agreements or communications relating to the Platform and the subject matter of this Agreement. This Agreement also supersedes any pre-printed terms contained on any purchase order or similar document issued by Customer and any such terms will have no force or effect. This Agreement will not be construed against the drafting Party, but instead will be construed as if both Parties prepared this Agreement.