Access Agreement
THIS ACCESS AGREEMENT (the “Agreement”) is a legal agreement by and between Rainier Works, LLC d/b/a Cascade Technology Co., a Washington limited liability company (“Licensor”), and the party identified on the Order Form or similar document and entering into this Agreement for access to the Service (“You”) on the date initially agreed to by You (the “Effective Date”). In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
By clicking “I AGREE”, You acknowledge that you have read and accept the terms and conditions of this Agreement in its entirety. IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, THEN THIS AGREEMENT INCLUDES YOUR EMPLOYER, AS APPLICABLE, AND YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH EMPLOYER’S BEHALF.
1. Scope of Agreement
Licensor offers a software-as-a-service platform and related tools that a) facilitate the capture, collection, and processing of construction project field data and documentation — including daily construction reports, manpower and labor data, work performed, equipment and material usage, weather conditions, delays, safety observations, photographs, and other project records — submitted by or on behalf of its customer, typically principal contractors, and its authorized subcontractors and vendors through mobile, SMS/text-message, web, and other interfaces; (b) organize and present such information to customer on and through Licensor applications, websites, and platforms for project monitoring, reporting, and record-keeping (e.g., dashboards, graphs, metrics, and reports); and (c) offer certain ancillary applications, analytics (including artificial intelligence–assisted analytics and summaries), documentation, and services to its customer to facilitate project management, back-office operations, and business planning and strategy, all as more particularly addressed in the Order Form (the “Service”).
You have a relationship with Licensor’s customer (“Customer”) and Customer has authorized You to access the Services to provide certain information and complete certain reports required by Customer. Licensor is willing to provide you with limited access to the Services in accordance with the terms and conditions of this Access Agreement.
2. Description of Services
2.1 Service.
Subject to the terms and conditions contained in this Agreement, Licensor agrees to use commercially reasonable efforts to furnish the Service in accordance with its Service description and specifications. Licensor reserves the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason without prior written notice. Licensor will make available certain customer support and maintenance for the Service in accordance with Licensor’s standard service offerings.
2.2 Right to Remove.
Licensor has the right in its sole discretion to remove or block any text, images, artwork, technology and other content, data, information, materials and other items provided or made available to Licensor or on the Service (“Your Materials”) at any time where (a) Your Materials violate applicable laws, regulations, orders, or is in violation of Licensor’s applicable policies and procedures; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Service, Licensor, or any third party; or (c) in order to respond to law enforcement or any other governmental authority.
2.3 Text Messaging.
A key feature of the Service includes the ability to submit certain materials via text messages. In order to use such text messaging features, You and each Registered User will be obligated to expressly consent to the Supplemental Text Messaging Terms and Conditions attached hereto as Exhibit A.
3. Your Responsibilities
3.1 Passwords.
You acknowledge that use of the Service requires that it register with Licensor. You will cause all users that You authorize to access the Service in conjunction with your services to Customer, including without limitation Your agents, employees, contractors or staff (“Registered Users”) to create an account to have access to the Service. You will cause each Registered User to (a) provide true, accurate, current and complete information (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Licensor has the right to suspend or terminate any Registered User account and refuse any and all current or future use of the Service to anyone that provides false or inaccurate data. Each Registered User is entirely responsible for the security and confidentiality of such Registered User’s password and account. You and each Registered User are entirely responsible for any and all activities that occur under that Registered User’s account. You will immediately notify Licensor of any unauthorized use of a Registered User account or any other breach of security of which You become aware.
3.2 Accuracy and Review of Your Materials.
You assume sole responsibility for: (a) any of Your Materials you upload to the Service; and (b) ensuring that Your Materials do not infringe or violate any right of any third party.
3.3 Compliance With Licensor Policies and Applicable Law.
You will make all submissions in accordance with Licensor’s policies. You will at all times comply with Licensor’s posted policies. You will comply with all applicable federal, state and local laws and regulations applicable to your performance hereunder, including without limitation any security or data breach notification obligations. You will not knowingly send any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening
3.4 Feedback.
You will provide feedback as reasonably requested by Licensor, including responding to invitations for feedback. Licensor will have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You relating to the operation of the Service.
4. License Grants
4.1 Licensor’s Grant of License.
Licensor grants Registered Users a limited, royalty-free, worldwide, non-exclusive, non-transferable license to use, access, input data into, and publicly display the Service for your use as a subcontractor to Customer. You (or a Registered User) may not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Service for any other purposes or make the Service available to non-Registered Users. Licensor grants no rights other than explicitly granted herein. You will not, and will not authorize Registered Users to: (i) sell, resell, lease, lend, or the functional equivalent thereof, the Service in whole or in part, to a third party, (ii) in any way alter, change, modify, adapt, translate or make derivative works of the Service, (iii) transmit any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data or personal information, or (iv) sublicense or operate the Service for timesharing, rental, outsourcing, or service bureau operations, or to train persons other than Registered Users. Licensor reserves all rights not expressly granted to You hereunder. All techniques, know-how, software, algorithms and methods or rights thereto owned by Licensor at the time this Agreement is executed, developed during the course of the design, development, and provision of the Service, or which are employed by Licensor in connection with the Service, will be and remain the property of Licensor or its licensors. You will not decompile, disassemble, or reverse engineer the Service or any elements of the Service, or otherwise derive source or object code from the Service or any elements thereof. You agree not to access the Service by any means other than through the interfaces that are provided by Licensor. You will ensure that all access and use of the Service by Registered Users is in accordance with the terms and conditions of this Agreement.
4.2 Your Grant of License.
You hereby grant to Licensor a worldwide, non-exclusive, royalty-free, license to use, distribute, reproduce, publicly perform, publicly display, digitally perform, make, have made, store, maintain and import all of Your Materials for the purposes of providing and operating the Service. The license may also be exercised on behalf of Licensor by third parties acting on Licensor’s behalf (e.g., technology partners, Licensors and independent contractors) to the extent necessary to provide the Service.
5. Ownership
As between Licensor and You, Licensor (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing.
6. Term And Termination
6.1 Term.
The Term of this Agreement will commence on the Effective Date and continue for so long as both (a) You are providing services to Customer; and (b) Customer continues to have a valid subscription to the Service.
6.2 Suspension for Cause.
Licensor may suspend Your access to the Service upon written notice in the event that You violate the license described in Section 4.1 or any of the policies described in Section 3.3, or where Licensor believes such action is necessary to protect the security or integrity of the Service or any data thereon.
6.3 Termination.
Except as otherwise provided for herein, Licensor may terminate this Agreement and Your access for any reason by providing you with fourteen (14) days prior written notice.
7. Warranties
Each party represents and warrants to the other party that (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which such party is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. You further represent and warrant that: (1) any and all disclosures, reporting, documentation and other use of the Service will comply with all applicable laws and regulations and will not be false, deceptive, misleading or fraudulent, (2) You hold all applicable licensures and qualifications required by applicable law and will otherwise conduct itself in accordance with all applicable law, and (3) You satisfy and will continue to satisfy all eligibility and operational requirements and policies identified in conjunction with the Service, as such requirements may be revised or updated.
8. Confidential Information
8.1
Each party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, will have access to or be directly or indirectly exposed to each other’s Confidential Information. Each party will hold confidential all Confidential Information and will not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. Each party will use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information. “Confidential Information” means information in the possession or under the control of a party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form, Your Materials, source code and information pertaining to usage and design of the Service, and the terms and conditions of this Agreement.
8.2
The foregoing restrictions on disclosure will not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.
8.3
Because of the unique nature of each party’s proprietary materials, each party understands and agrees that the other party may suffer irreparable injury in the event that a party fails to comply with any of the terms of this Section, and that monetary damages may be inadequate to compensate for such breach. Accordingly, each party agrees that the other party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement against any actual or threatened breach of this Section.
9. Disclaimers of Warranty; Limitation of Liability
9.1
THE SERVICE IS MADE AVAILABLE BY LICENSOR TO YOU “AS IS” AND “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, LICENSOR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, CHARACTER, NATURE, CAPABILITY, PERFORMANCE, SECURITY, AVAILABILITY, SUITABILITY, TITLE, SOURCE OR ANY OTHER CHARACTERISTIC OF THE SERVICE OR ANY PORTION THEREOF. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THIS AGREEMENT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (C) ANY WARRANTY THAT THE SERVICE WILL BE SECURE OR ERROR-FREE, WILL MEET YOUR REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR.
9.2 No Professional Advice.
THE SERVICE IS A TOOL FOR YOUR USE. LICENSOR DOES NOT GIVE PROFESSIONAL ADVICE TO YOU REGARDING BUSINESS PLANNING OR OTHER FINANCIAL STRATEGIES. LICENSOR DOES NOT GIVE PROFESSIONAL ADVICE. UNLESS SPECIFICALLY INCLUDED WITH THE SERVICES, LICENSOR IS NOT IN THE BUSINESS OF PROVIDING LEGAL, FINANCIAL, ACCOUNTING, TAX, ENGINEERING, CONSTURCTION MANAGEMENT, OR OTHER PROFESSIONAL SERVICES OR BUSINESS ADVICE. CONSULT THE SERVICES OF A COMPETENT PROFESSIONAL WHEN YOU NEED THIS TYPE OF ASSISTANCE. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS THAT RESULT FROM USE OF THE SERVICE
9.3 Risks of Using AI.
YOU ACKNOWLEDGE THAT IT IS USING AN AI SYSTEM WHEN IT INTERACTS WITH THE SERVICE. AI SYSTEMS CAN MAKE ERRORS, PRODUCE INCOMPLETE OUTPUTS, OR GENERATE RESPONSES THAT APPEAR CONFIDENT BUT ARE INACCURATE. AI RESPONSES MAY ALSO CONTAIN ERRORS, MALICIOUS CONTENT, OR PROMPT INJECTION ATTEMPTS ORIGINATING FROM THIRD-PARTY SOURCES. LICENSOR CANNOT VERIFY, AUDIT, OR GUARANTEE THE ACCURACY OF ANY AI RESPONSE. ALWAYS VERIFY MATERIAL INFORMATION BEFORE ACTING ON IT. YOU SHOULD NOT RELY ON AN AI RESPONSE FOR ANY CONSEQUENTIAL FINANCIAL DECISION. FOR IMPORTANT MATTERS, CONSULT A QUALIFIED PROFESSIONAL
9.4
EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, OR (C) GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, IN NO EVENT WILL (I) EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS ACCRUING DURING THE TERM OF THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10. Notices
Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement will be valid only if in writing and will be delivered by e-mail, personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each party set forth on the corresponding order form or similar document.
11. Release
In the event that you have a dispute with Customer or with a third party that has posted content on the Service, you release Licensor (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. LICENSOR EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN YOU AND CUSTOMER.
12. Assignment
This Agreement will be binding on the parties hereto and their respective successors and assigns. Except as otherwise set forth in the Agreement, neither party will have the right to assign or transfer this Agreement or its rights and obligations hereunder, without the prior consent of the other party. Notwithstanding the foregoing, Licensor may assign or transfer this Agreement without Your approval to: (a) an entity which acquires all or substantially all of the assets, stock or business of Licensor; (b) to any entity controlling, controlled by or under common control with Licensor, or (c) to the successor in a merger, acquisition or liquidation of Licensor. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. Any assignment of rights or delegation of duties under this Agreement by a party will not release such party from its obligations hereunder. Any purported transfer, assignment, or delegation without the appropriate prior written consent will be null and void when attempted and of no force or effect.
13. General Provisions
This Agreement will be governed by and interpreted in accordance with the laws of the State of Washington without regard to its conflict of laws provisions. The titles of the sections of this Agreement are for convenience only and will not affect the interpretation or construction of any section. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather will be deemed to be followed by the words “without limitation.” This Agreement, including the corresponding order form or similar document and any other policies referenced herein or on such Order Form, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. A waiver of any of the terms of this Agreement, or any breach or default hereunder, will not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature. This Agreement may only be modified, amended or supplemented in a written document agreed to by authorized signatories of both parties subsequent to the date of execution of this Agreement. If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party will be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof. If You submit to Licensor a purchase order to effectuate its ordering or payment of the Services specified on an Order Form or otherwise agreed to by the parties and Licensor acknowledges such purchase order by means of any kind of acknowledgement document, each of You and Licensor hereby rejects any terms or conditions appearing on any such purchase order or acknowledgement document that are in addition to, or different from, the terms and conditions of this Agreement and/or the Order Form (“Form Terms”), and the Parties agree that all Form Terms will be void and of no force or effect.
Exhibit A
Text Messaging Supplemental Terms and Conditions
Licensor offers text messaging that allows you to access and use the functionality of the Service from your mobile device. You must opt-in to receive mobile text messages to access and use this functionality of our Service. Licensor will send an initial text message invitation to the mobile number provided to Licensor by your employer or the general contractor engaging you. You opt in to receive text messages by registering through the link in that invitation or by replying to it. By doing either, you agree to these Supplemental Text Messaging Terms and Conditions. Consent to receive text messages is not required to subscribe to our Service, but is necessary to get the most benefit from it. Licensor may send you up to 1000 text messages per month. In special circumstances, you may receive additional messages related to outages, new features, or other updates to the Service and this may exceed the number of messages per month. Licensor reserves the right to alter the frequency of messages sent at any time. Licensor also reserves the right to change the short code or phone number from which messages are sent and Licensor will notify you of the change. Licensor will not charge you for the text messages you receive from us. However, depending on your mobile plan, text message and data rates may apply. Licensor will not be liable for any delayed or undelivered messages.
You may opt-out at any time by texting the word “STOP” to (206) 483-2616. You agree to receive a final text message confirming your opt-out. If you want to join again, just sign up as you did the first time and Licensor will start sending text messages to you again. If you are experiencing issues with the messaging program you can send a text message with the keyword “HELP” to (206) 483-2616 or you can get help directly at info@cascadetechnology.ai. Texts may be sent through an automatic telephone dialling system. You agree to notify us of any changes to your mobile number. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
Licensor reserves the right to terminate a mobile communication service, in whole or in part, at any time and without notice.