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 under the terms of this Agreement. These terms cover all the services SiteMax provides to you through our applications (“App”), our web application: any domain under .sitemax.cloud or restorify.cloud (“Site”) and our external portal (all services accessed through the Apps and Sites, “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 the latest versions of mobile operating systems (eg Android, iOS) and Chromium browsers (Chrome, Edge). 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 security implementations, for example. If the Solution’s functionality is degraded or functions are lost in any manner due to Solution changes not pre-approved by the Customer, 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 change to the Solution require or entail additional software or hardware resources on the part of the Customer 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 the Customer’s responsibility to (a) provide for its access to the Internet, arrange for secure Internet access and pay any data/service fees associated with such access; (b) train its end-users in basic app access and mobile security; (c) provide device or basic tech support to its end-users; (d) provide and maintain its 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; (f) ensure users are on the latest version of the mobile app; (g) ensure compatibility with any third party application and extension; (h) manage security requirements including receiving emails from the domains in sitemax.cloud, sitemaxsystems.com.
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 the Customer written notice of such breach. If such breach is not corrected within 30 days of given notice, 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.
2.5. Third-Party Interactions. SiteMax may engage third parties to provide the Solution or perform its obligations, or any portion thereof, under the Agreement. SiteMax will remain responsible for the performance of its obligations set out in this Agreement performed by any third party to the same extent as if such obligations were performed by SiteMax.
3.2. SiteMax will use the Relevant Data only under 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 for 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 its 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 that 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
– via Web, Solution using the chat functionality
– via Mobile, Solution using the report an issue functionality
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 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 of studies only with the Customer’s express 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. Resale or exchange of SiteMax seats must be approved in writing or email by an authorized senior SiteMax representative.
5.3. Customer may give access to the Solution to its employees. Customers 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 referenced at the End User Services Agreement section. All Customers personnel and Collaborators provided with access to the Solution by the Customer can be counted as the Customer’s end users for which the Customer will incur Charges in the manner set out in section 7 based on the level of access they are given to the Solution.
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 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 the Contract, Relevant Data shall remain available to the Customer for 90 days, accessible using the access details provided to the Customer, and can be exported by the Customer through a native module of the Solution using comma-separated values format, PDF with accompanying images. After this 90 day 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 date that you the Customer accept the terms and conditions of this Agreement (“Contract Commencement Date”), confirming that the solution has been sufficiently demonstrated, trialed and/or tested by the customer, and that it shall remain enforced for a minimum subscription period of 12 months, regardless of paying annually or in monthly installments.
6.2. Upon each new billing cycle, SiteMax may amend the Agreement to maintain the Customer on the current applicable pricing structure and the number of paid end users.
6.3. Fees for the Solution are non-refundable and based on a minimum subscription period of 12 months, regardless of paying annually or in monthly installments. Termination of the Agreement (other than for the reasons stated in sections 6.4 and 6.5) can only take place after this period of 12 months and only with 3 months’ written notice. If the Customer requires transitional support upon the termination of the Agreement, the customer agrees to pay all transitional support fees related to the Solution at an hourly rate of USD 300.00 per hour.
6.4. 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.
6.5. 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 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 under 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.
6.6. 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 the Solution.
6.7. The monthly or annual installment fees are recurring (all such fees are referred to as “Charges”) and to be charged automatically at the current applicable pricing structure and the number of paid end-users being set up in the Solution (additional fees apply with added end-users) as per section 6.2.
7.1. The Customer shall pay the Charges under the Agreement, together with any applicable taxes at the applicable rate. With Charges shown as one-time fees, SiteMax shall invoice the Customer on the Contract Commencement Date (upon clicking the “Accept” button or agreement of additional serivces). Customers choosing a monthly installment cycle shall be charged for each calendar month in advance, starting at the Contract Commencement Date. Customers choosing an annual billing cycle shall be charged every 12 months in advance, starting at the Contract Commencement Date.
7.2. Charges for use of the Solution are calculated based on the Customer’s end users and any Collaborators permitted to use the Solution by the Customer (collectively end users). Periodically and on every billing period, SiteMax may audit the number of the Customer’s end users. SiteMax will notify the Customer if any additional sums are owing for use of the Solution because of the Customer having additional end users for the Solution and will charge the Customer accordingly. Customers 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 subscription fees from SiteMax under the Agreement shall be due and payable by the Customer on the billing date. All payments shall be made by the Customer located in Canada in Canadian Funds by credit card to SiteMax’s 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’s 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. Cheque payments are accepted as an alternative for Customers located in Canada and on an annual billing cycle.
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. Implementation, onboarding, monthly and annual transaction fees are not refundable. If any party was to terminate the Agreement, as per section 6 and after the minimum subscription period of 12 months, all pro-rated fees would still be owed for the 3 months following the written 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 defence and settlement of the Claim; (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.
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 is 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.