SITEMAX SYSTEMS INC. (“Sitemax”) has developed a suite of mobile and web applications deployed in a software-as-a-service environment for the management of a construction site (“Solution”). This Solution is provided to the Customer in accordance with the terms of this Agreement. These terms cover all the services Sitemax provides to you through our applications (“App”) and on our web application: any domain under .sitemax.cloud (“Site”) (all services accessed through the App and Site, “Solution”). This Agreement will also apply to any other services by which Sitemax assists the Customer in using the system for its purposes. The nature and scope of such services as well as the remuneration payable are specified in this Agreement.
2.1. The Solution is intended to work on latest versions of mobile operating systems (eg Android, iOS) and Chrome browser. The Customer hereby agrees that Sitemax has the right to change the Solution in any manner at Sitemax’s absolute discretion including for the reason of making the Solution compatible with the latest mobile OS’s, for compatibility with legal requirements or for security implementations, for example. If the Solution’s functionality is degraded or functions are lost in any manner due to Solution changes, and Sitemax is unable to rectify such functionality issues within 30 days of being notified then the Customer may immediately terminate this Agreement without giving the period of notice specified in section 6.
2.2. Should changes to the Solution require or entail additional software or hardware resources on the part of the Customer in order for the Customer to use the full scope or functionality, then Sitemax shall notify the Customer at least four weeks in advance.
2.3. It is Customer’s own responsibility to: (a) provide for its own access to the Internet, arrange for secure Internet access and pay any data/service fees associated with such access; (b) train its own end users in basic app access and mobile security; (c) provide device or basic tech support to its own end users; (d) provide and maintain its own computer hardware and/or mobile devices or be responsible for any degradation of such hardware or devices; (e) ensure proper setup, use and access for users given access to the Solution.
2.4. Customer can only use the Solution for legal purposes and only for Customer’s own business. Using the Solution for any other purpose in violation of any of the terms of this Agreement in any way is a breach of this Agreement. Sitemax will give Customer written notice of such breach. If such breach is not corrected in 30 days Sitemax may terminate this Agreement and Customer’s access to the Solution. It is up to the Customer to police its end user’s use of the Solution and to educate its end users.
3.2. Sitemax will use the Relevant Data only in accordance with this Agreement and such other instructions as the Customer may issue from time to time.
3.3. Relevant Data is hosted on third party servers within a data container reserved for that Customer, ensuring that other customers and third parties have no access to Relevant Data.
3.4. To ensure data security, Sitemax shall employ exclusively state-of-the-art technologies with respect to the Solution and its provision. Moreover, Sitemax will ensure that all and any third-party services are provided only by suitably qualified subcontractors employing state-of-the-art technology.
3.5. The Customer is provided with a user ID and a password by Sitemax enabling them to access their data within the confines of the accessibility of the user interface. The Customer acknowledges that the confidentiality of Sitemax-hosted data can only be guaranteed if the Customer protects the confidentiality of the access details provided to it. Should these access details be compromised in any way, then the Customer shall inform Sitemax of this fact immediately and instruct Sitemax to change and/or disable access details, as Sitemax otherwise cannot guarantee that the Customer has exclusive access to his data.
3.6. In the event of a disruption to operations, Sitemax shall begin problem resolution activities:
(a) within two hours (severity level 1) where such disruption affects components which are essential to the availability of the system or its operability;
(b) within 24 hours (severity level 2) where the disruption affects availability or operability as described by documentation but where such disruption is not critical to the Customer’s work, after the problem report is logged during normal business hours.
3.7. Customer requests for additional or modified functionality will, wherever possible, be taken into account in the next Solution update (severity level 3).
3.8. Sitemax support can be reached as follows: – by telephone at 1 (888) 885-4036
– by email at email@example.com
The Customer shall be notified without delay of successful problem resolution.
4.1 Sitemax shall be entitled to refer to the Customer’s name and logo for reference purposes in its own advertising including (without limitation) its website, exhibition stand, brochures and newsletters. Should such use be subject to special conditions, these shall be notified by the Customer. The Customer’s name and/or logo shall be used in press releases to external distribution lists and/or in case studies only with the Customer’s consent.
5.1. The Solution is owned by Sitemax. Any customizations of the Solution provided as a service to the Customer is the intellectual property of Sitemax and the Customer may not claim any right to any workflow or process created as the result of custom development. All proprietary and intellectual property rights, title and interest including copyright and trade secret rights in and to anything associated with the Solution remains that of Sitemax.
5.2. Customer may not use the Solution in a service bureau environment (ie to provide services to other entities) without the prior written approval of Sitemax. Resell or exchange of SiteMax seats must be previously discussed and approved by a member of Sitemax leadership team.
5.3. Customer may give access to the Solution to its employees. Customer may also wish to allow certain permitted third-party contractors of Customers (“Collaborators”) to access the Solution. In such event the Customer will require all its personnel and all Collaborators to agree to the terms of Sitemax’s End User Services Agreement for the Solution, the terms of which are set out in Schedule C. All Customers personnel and Collaborators accessing the Solution via the Customer’s login will be counted as Customer’s end users for which Customer will incur Charges in the manner set out in section 7.
5.4. Except as stated in subsections 5(1) to 5(2) above, the Customer has no right (and shall not permit any third party) to use, copy, adapt, reverse engineer, decompile, disassemble, modify, or make error corrections to the Solution, in whole or in part.
5.5. Relevant Data remains the exclusive property of the Customer and may only be modified, deleted or supplemented by the Customer. Sitemax shall not use this Relevant Data for its own purposes, or the purposes of any third party, nor shall it sell or trade or disclose this data to third parties.
5.6. Following termination of contract, Relevant Data shall remain available to the Customer for a period of 30 days, accessible using the access details provided to the Customer, and can be exported by the Customer by means of a native module of the Solution using comma separated values format, PDF with accompanying images. After this 30 days’ time period has elapsed, Sitemax shall be entitled to remove the Customer’s Relevant Data from its servers.
6.1. The Agreement shall come into force on the Contract Commencement Date and (subject to the provisions for earlier termination in the Agreement) shall remain in force until otherwise notified in writing by either party.
6.2. The Agreement shall stay enforced unless either party notifies the other in writing that it does want to terminate the Agreement. Such notice must be received by the non-terminating party at least 3 calendar months before the last billing cycle.
6.3. Upon each new billing cycle Sitemax may amend the Agreement to maintain the customer on currently applicable pricing structure and the number of seats used.
6.4. Onboarding fees are charged on the basis of a minimal subscription period of one year. In case of termination of the Agreement, outside of close 6.5 and 6.6, within the 12 months following the Contract Commencement Date, the customer agrees to pay all development cost requested by the implementation, as defined by Sitemax Systems Inc Development and Success team, at an hourly rate of $300 CAD per hour.
6.5. Either party may terminate the Agreement immediately upon notice in writing to the other party if the other party commits a breach of its obligations under the Agreement and (a) such breach is material and cannot be remedied; or (b) such breach is material and possible to remedy, or is a persistent breach, and in either case that other party fails to remedy such breach within thirty (30) days of having been required in writing to remedy such breach.
6.6. Either party may terminate the Agreement immediately upon notice in writing to the other party (the “Defaulting Party”) if the Defaulting Party presents a petition or has a bona fide petition presented by a creditor for its winding up, or convenes a meeting to pass a resolution for voluntary winding up, or enters into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), or calls a meeting of its creditors, or has a receiver of all or any of its undertakings or assets appointed, or is deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts; or the Defaulting Party suffers or undergoes any procedure analogous to any of those specified in this Subsection 6 (5) under the laws of any jurisdiction.
6.7. Notwithstanding any other provision of this Agreement, with effect from the date of termination of the Agreement, the Customer shall no longer be entitled to use any part of Solution.
6.8 The monthly or annual fees are based on a 1-year term and to be continued annually at the agreed user amount and price (additional fees apply with added users).
7.1. The Customer shall pay the Charges in accordance with the Agreement, together with any applicable taxes at the applicable rate. In relation to Charges shown as one-time fees, Sitemax shall invoice the Customer on the Contract Signing Date. Customer choosing monthly billing cycle shall be charged for each calendar month in advance, starting at the Contract Signing Date. Customer choosing annual billing cycle shall be charged for each 12-month period in advance, starting at the Contract Signing Date.
7.2. Charges for use of the Solution are calculated on the basis of Customer’s end users and any Collaborators permitted to use the Solution by Customer (collectively end users). Periodically and on every billing period, Sitemax may audit the number of Customer’s end users. Sitemax will notify the Customer if any additional sums are owing for use of the Solution by reason of the Customer having additional end users for the Solution and will charge the Customer accordingly. Customer choosing a yearly billing cycle, when requesting additional seats, will be charged at the agreed seat cost, proportionally to the time remaining in the current billing cycle, on the date the additional seat(s) are granted.
7.3. Payment shall be made by the Customer without deduction, withholding or set off. All invoices issued by Sitemax in accordance with the Agreement shall be due and payable by the Customer within fourteen working days of the invoice date. All payments shall be made by the Customer located in Canada in Canadian Funds by credit card or cheque to Sitemax’ bank account as notified to the Customer by Sitemax from time to time, with any applicable charges on such payments being at the Customer’s expense. All payments shall be made by the Customer located outside of Canada in US dollars by credit card to Sitemax’ bank account as notified to the Customer by Sitemax from time to time, with any applicable charges on such payments being at the Customer’s expense.
7.4. Without prejudice to any other right or remedy of Sitemax, if the Customer fails to make any payment under this Agreement by the due date for payment, then Sitemax may suspend access to the Solution, and shall be entitled to charge the Customer, and the Customer shall pay Sitemax on demand, interest on the unpaid amount from the due date for payment until the payment is received in full by Sitemax
7.5. Pre-construction, onboarding, monthly and annual transaction fees are not refundable. If any party was to terminate the Agreement, as per section 6, all fees would still be owed for the three months following the notice received.
8.1. Sitemax has the right and all necessary permissions to provide the Solution to the Customer. In the event of the breach of this representation, Sitemax shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Solution infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly gives Sitemax written notice of the Claim; (b) gives Sitemax sole control of the defense and settlement of the Claim; and (c) provides to Sitemax all reasonable assistance, at Sitemax’s expense. This Section 8.1 states Sitemax’s sole liability to, and Customer’s exclusive remedy against Sitemax for any type of Claim.
8.2. Sitemax has no responsibility to Customer other than as expressly set out in this Agreement. Without limitation Sitemax has no responsibility for:
(a) data charges;
(b) computer hardware or mobile device degradation;
(c) compliance with building processes, safety instructions or Customer compliance with all laws respecting workplace safety rules and/or best practices (stock forms and procedures within the Solutions are simply guidelines and do not represent endorsements);
(d) serving data to the Customer via the Solution if the Customer’s end users are at a location without an Internet/data connection;
(e) accurate delivery of push/email reminders and/or notifications;
(f) personal injury, harm, death or any other like injury to persons detailed within forms or processes provided within the Solution.
8.3. THE SOLUTION IS PROVIDED “AS IS, WHERE IS” OTHER THAN AS SET OUT IN SECTION 8.1. SITEMAX DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOLUTION WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY IS LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OR LOSS OF PROFITS RESULTING FROM THE SERVICES (OR ANY THIRD PARTY GOODS OR SERVICES) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If either party is liable to the other in no event will the total aggregate liability of a party to the other exceed the total amount paid by Customer to Sitemax during the trailing 12 months prior to liability being incurred.
9.1. The Agreement and any dispute or claim arising in connection with it shall be governed by the laws of British Columbia and Canada and shall be subject to the exclusive jurisdiction of the Provincial and Federal Courts to which the Parties irrevocably submit.
9.2. If any provision of the Agreement be prohibited by law or judged to be void or unenforceable by a court of competent jurisdiction, that provision shall, to such extent, be severed from this Agreement without prejudice to the validity and enforceability of the remainder of the provision, or of the Agreement generally. Where possible, the parties shall use reasonable endeavours to amend any such provision in such a way that it becomes valid and legal and implements the original intent of the parties as to the matter in question.
9.3. The Customer hereby acknowledges and agrees that, where the Customer issues a purchase order to Sitemax relating to the subject matter of the Agreement or any other Sitemax products or services, these Terms of Service shall prevail over the terms of such purchase order, if accepted by Sitemax, shall be accepted for the sole purpose of referencing invoices.
9.4. The Customer shall not assign transfer or otherwise dispose of any of its rights or responsibilities under the Agreement without the prior written consent of Sitemax.