Platform and services agreement
THIS PLATFORM AND SERVICES AGREEMENT (this “Agreement”) is effective as of the date the document titled “Bridgit Agreement” (the “Proposal”) is signed (the “Effective Date”) between Bridgit INC. (“Bridgit”) and THE CUSTOMER (as defined on the Proposal).
A. Bridgit and Customer are each a "Party"** to the Agreement and may be collectively be referred to as the "Parties".**
B. Bridgit developed and owns the rights to certain services delivered through the Bridgit Software (as defined herein).
C. The Customer is in the construction and/or building business.
D. Bridgit and the Customer have agreed to the terms of the Proposal (as defined herein).
E. Bridgit and the Customer wish to enter into this Agreement whereby Bridgit will grant a license to use Bridgit Software to the Customer and perform certain Services (as defined herein) on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual representations, warranties and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 . Definitions: For the purposes of this Agreement, the following capitalized terms have the meanings set out below:
a) “Bridgit Software” means the proprietary platforms individually titled Bridgit Closeout, Bridgit Tasks, Bridgit Quality, that are designed to enable the Customer and Customer Users to record and assign construction deficiencies, inspections and checklists to the relevant stakeholders.
b) “Claim” has the meaning ascribed in Section 8.1.
c) “Confidential Information” means the information of a Party or of third parties to which such Party has a duty of confidentiality, disclosed in connection with this Agreement, whether such information is or is not marked or identified as confidential or proprietary, including software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, financial information, marketing and financial plans and data. “Confidential Information” does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully; (ii) becomes publicly known without fault of the receiving party; (iii) is independently developed by the receiving party; (iv) is approved for release in writing by the disclosing party; (v) is disclosed without restriction by the disclosing party to a third party; or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.
d) “Customer Data” means data originating from the Customer or Customer Users.
e) “Customer User(s)” means any Person using Bridgit Software as a result of his, her or its affiliation with or connection to the Customer.
f) “Documentation” means program documentation, user manuals, handbooks and other materials describing the use, design, installation, operation and maintenance of Bridgit Software or in the delivery of the Services.
g) “Effective Date” has the meaning ascribed to it in Section 10.1.
h) “Enhancements” means improvements and other changes intended to improve the performance of Bridgit Software.
i) “Fee” means the Initial Term Fee and the Renewal Term Fee, as applicable.
j) “Initial Term” has the meaning ascribed to it in Section 10.1.
k) “Initial Term Fee” has the meaning ascribed in Section 3.1.
l) “Implementation Services” has the meaning ascribed to it in Section 4.1.
m) “Intellectual Property” means any of the following and the Intellectual Property Rights therein: software, media content, distribution content, instructions, specifications, engineering designs, concepts, models, trade secrets, and know-how.
n) “Intellectual Property Rights” means all rights protectable by copyright, trade-mark, patent, industrial design or trade secret laws and other intellectual property rights under laws, including common law.
o) “New Features” means the addition of new functionality in addition to available functionality in Bridgit Software.
p) “Person” means any individual, corporation, partnership, governmental body, trust, association or unincorporated organization.
q) “Personal Information” means information about an identifiable individual regulated as personal information by a Privacy Law
r) “Privacy Laws” means laws relating to the collection, use, storage and disclosure of information about an identifiable individual, including the Personal Information Protection and Electronic Documents Act (Canada).
s) “Projects” means the projects listed in the Proposal.
t) “Proposal” means the proposal between Bridgit and the Customer, in respect of Bridgit Software and the Services, to which this Agreement forms Appendix A of and to which this Agreement is incorporated into by reference.
u) “Renewal Term” has the meaning ascribed to it in Section 10.1.
v) “Renewal Term Fee” has the meaning ascribed to it in Section 3.2.
w) “Services” means all services to be provided by Bridgit to the Customer and Customer Users hereunder, including services connected to Bridgit Software, Implementation Services, and Support Services.
x) “Support Services” has the meaning ascribed in Section 4.2.
y) “Term” means the Initial Term and all Renewal Terms, as applicable.
1.2 General Interpretation
a) Number and Gender. In this Agreement, words importing the singular include the plural and vice versa, and words importing gender include all genders.
b) Section Headings. The insertion of headings and the division of this Agreement into Sections are for convenience of reference only and will not affect the interpretation hereof. The words “hereof”, “hereunder”, “hereto” and similar expressions refer to this Agreement and not to any particular Section or other portion of this Agreement.
c) Extended Meaning. The use of (i) the terms “including” or “include” mean “including, without limitation” or “include, without limitation” respectively; (ii) the term “Services” or “the Services” means “Services, or any part thereof” or “the Services, or any part thereof”, as applicable; and (iii) a definition applies to other forms of the word.
d) Currency. All references to money amounts herein, unless otherwise specified on the Proposal, will be in the Customer’s domestic currency.
e) Generality. No specific representation, warranty or covenant contained herein will limit the generality or applicability of a more general representation, warranty or covenant contained herein. A breach of, or inaccuracy in, any representation, warranty or covenant will not be affected by the fact that any more general or less general representation, warranty or covenant was not also breached or inaccurate.
f) Construction. The Parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein, with respect to which an issue of interpretation or construction arises, will not be construed to the detriment of the drafter on the basis that such Party was the drafter, but will be construed according to the intent of the Parties as evidenced by the entire Agreement.
g) Technical Terms. Technical terms used in this Agreement that are not defined in this Agreement will have the generally accepted industry or technical meaning given to such terms.
2. Grant of access to Bridgit Software
2.1 License. Bridgit hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable license in the territory of Canada and the United States of America to: (i) access and use of Bridgit Software; (ii) access and use the Documentation made available by Bridgit; and (iii) permit Customer Users to access and use Bridgit Software, all in accordance with the terms of this Agreement and any terms of service presented on Bridgit Software.
2.2 Restrictions. The Customer shall not, and shall ensure the Customer Users do not: (i) use Bridgit Software for purposes other than in relation to the Projects; (ii) reverse engineer or decompile, modify or revise Bridgit Software or any part thereof, or create adaption, combinations or derivative works thereof; (iii) make accessible, sub-license or transfer Bridgit Software to any third party; or (iv) engage, directly or indirectly, in the research, development, manufacturing, marketing, distribution, sale, lease or licensing of any product, using Bridgit’s Confidential Information or Intellectual Property Rights.
2.3 Access. During the Term, Bridgit will provide the Customer with the necessary passwords and access credentials to access Bridgit Software. The Customer will notify Bridgit immediately if it becomes aware of any theft or misuse of such passwords or access credentials or misuse of Bridgit Software by the Customer, Customer’s personnel, Customer User or any other Person. Bridgit may immediately cancel access to Bridgit Software, and terminate this Agreement, if Bridgit has a reasonable basis to believe, in its sole discretion, that Bridgit Software is being improperly used. In case of termination of this Agreement and/or access, payment of the Fee shall be in accordance with Section 10.4.
3.1 Initial Term Fees. As full and complete consideration for the performance of the Services, the Customer shall pay Bridgit the fees stipulated in the Proposal (the “Initial Term Fee”).
3.2 Renewal Term Fees. The Fee shall apply for the Initial Term. No later than sixty (60) days prior to the expiry of the Initial Term or any Renewal Term, Bridgit may provide a revised monthly fee schedule applicable for the subsequent Renewal Term (the “Renewal Term Fee”). If such revised monthly fee schedule is not acceptable to the Customer, the Customer may not renew.
3.3 Invoicing. Bridgit shall invoice the Customer in advance.
3.4 Payment of Fees and Overdue Payments. Unless otherwise indicated, the Customer shall pay the Fee within fifteen (15) days of receipt of invoice from Bridgit. Bridgit may assess the Customer interest at the rate of 1.5% per month on any past due amount. The Customer will also be responsible for any costs incurred by Bridgit in collecting any past due amount.
3.5 Taxes. The Fee does not include applicable taxes. The Customer is responsible for all sales, use, excise, goods and services, value added and like taxes, except income taxes, which Bridgit is required to collect in relation to this Agreement.
4. Services and Service Levels
4.1 Implementation Services. Bridgit will not provide any customization services with respect to the initial implementation of Bridgit Software (the “Implementation Services”).
4.2 Support Services. Bridgit will provide support and maintenance services with respect to Bridgit Software (the “Support Services”) in accordance with the service levels set out in Schedule A. Support Services shall be included in the Fee payable by the Customer.
4.3 Cooperation. The Customer will provide Bridgit all reasonable information, assistance, documentation, cooperation and updates as requested or required by Bridgit to perform the Services. Bridgit will not be liable for any failure to perform hereunder caused by the Customer’s failure to provide such information, assistance, documentation, cooperation or updates.
4.4 Enhancements and New Features. Bridgit may make Enhancements or add New Features to Bridgit Software from time to time and the Customer will cooperate with Bridgit to affect or incorporate any such Enhancements or New Features. From time to time, the Customer will be given the option to upgrade and pay an additional fee for new features.
4.5 Service Levels. Bridgit Software will be made available to Customer in accordance with the service levels set out in Schedule A.
5.1 Obligation of Confidentiality. Each Party agrees: (i) to take all measures necessary to keep the Confidential Information of the other Party confidential; and (ii) not to release, disclose, divulge or otherwise make available any of the Confidential Information of the other Party to any person except:
a) employees of the receiving Party who need to use the Confidential Information for the purposes of this Agreement
b) necessary subcontractors, representatives or legal and professional advisors of the receiving Party; or
c) to the extent required pursuant to an order of a court of competent jurisdiction or as otherwise required by law, provided that Bridgit is notified forthwith of any such requirement, and provided that reasonable efforts are made by the Customer to maintain the confidentiality of the Confidential Information in any required disclosure.
5.2 Right to Injunctive Relief. Each Party acknowledges that monetary damages may not be a sufficient remedy for a breach of its obligations and that the other Party will be entitled, without waiving any of its other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
5.3 Personal Information. Each Party will comply with Privacy Laws with respect to all activities related to this Agreement. The Customer will promptly notify Bridgit of any complaints or inquiries by individuals whose Personal Information was provided to the Customer or Customer Users and will co-operate with Bridgit in resolving any such complaints and inquiries.
5.4 Data Security. Bridgit will take commercially reasonable steps to protect Customer Data from unauthorized access. Bridgit will not delete any Customer Data without Customer’s written consent. The Customer is responsible for the conduct of its employees, contractors, clients and any Person who may access Bridgit Software using a password issued to or by the Customer.
6. Proprietary Rights
6.1 Title to Bridgit Software. Bridgit exclusively owns and shall at all times retain all ownership, right, title and interest in and to Bridgit Software, including any Enhancements or New Features, and its underlying technology, source code, proprietary information and all other related Intellectual Property. The Customer covenants that it shall not, either during the Term of this Agreement or thereafter, directly or indirectly, contest, or assist any third party to contest, Bridgit’s ownership of Bridgit Software and any intellectual property rights related thereto.
6.2 Proprietary Legends. The Customer will not remove or alter any copyright notice, trade-mark or other proprietary or restrictive notice or legend affixed to, contained in or included in Bridgit Software and any Documentation and other materials provided by Bridgit.
6.3 Customer Data. Customer owns and shall at all times retain all ownership, right, title and interest in and to the Customer Data; provided, however, that Bridgit may use non-identifiable anonymous data that is taken from the Customer Data and combine it with other anonymous data to create what is referred to as “aggregate data” that may be provided, disclosed or sold to third parties. Bridgit may also use the Customer data as required to provide the Services.
7.1 Bridgit’s Warranty. Bridgit represents and warrants that: (i) Bridgit has all requisite individual and corporate power and authority to enter into this Agreement and to carry out the transactions contemplated herein; and (ii) the execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby has been duly authorized by all requisite corporate actions.
7.2 Customer’s Warranty. The Customer represents and warrants that: (i) Customer has all requisite individual and corporate power and authority to enter into this Agreement and to carry out the transactions contemplated herein; and (ii) the execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby has been duly authorized by all requisite corporate actions.
7.3 Limitation of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES, CONDITIONS AND UNDERTAKINGS SET FORTH IN THIS AGREEMENT, BRIDGIT DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS RESPECTING BRIDGIT SOFTWARE, THE DOCUMENTATION AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY A COURSE OF DEALING OR USAGE OF TRADE.
8.1 Indemnification by Bridgit. Bridgit agrees to defend the Customer against any claim, suit, demand or action (a “Claim”) brought by a third party alleging that the Customer’s use of Bridgit Software infringes upon such third party’s Intellectual Property Rights, and to pay any and all settlements (to which Bridgit agrees) or judgments finally awarded; provided, however, that: (i) the Customer will provide Bridgit prompt written notice of such Claim; (ii) the Customer will reasonably cooperate with Bridgit in the defense and settlement thereof at Bridgit’s expense; and (iii) Bridgit will have sole control of the defense of such Claim and the settlement or compromise thereof. The foregoing will not apply to the extent that the infringement arises from the use of Bridgit Software in a manner that was not intended or not in accordance with this Agreement.
8.2 Customer Remedy upon Prevention of Bridgit Software Use. In the event that an injunction is obtained against the Customer’s use of Bridgit Software arising from a suit, claim or proceeding, or if Bridgit anticipates that there is a likelihood of a claim of infringement, Bridgit may, at its option and expense, either: (i) procure for the Customer the right to continue using Bridgit Software; (ii) replace or modify the infringing component so that it no longer infringes upon such Intellectual Property Rights; or (iii) where (i) or (ii) are not practical in the sole discretion of Bridgit, terminate this Agreement and cease access to Bridgit Software. If the Customer is prevented from using Bridgit Software pursuant to this Section, then no fees will be payable by the Customer for those periods during which it does not have access to Bridgit Software.
8.3 Exclusive Remedy. Sections 8.1 and 8.2 set forth the exclusive and entire remedy of Customer against Bridgit with respect to any action or claim for an alleged infringement of Intellectual Property Rights by Bridgit Software or any component thereof.
8.4 Indemnification by Customer. Except for matters which are subject to Bridgit’s obligation to indemnify pursuant to Section 8.1, the Customer agrees to defend, indemnify and hold Bridgit harmless from and against any Claim arising from either the Customer’s or the Customer Users’ use of Bridgit Software or arising in relation to this Agreement, generally; provided, however, that (i) Bridgit will provide the Customer a prompt written notice of such Claim; (ii) Bridgit will reasonably cooperate with the Customer in the defence and settlement thereof at the Customer’s expense; and (iii) the Customer will have sole control of the defence of such Claim and the settlement (to which the Customer agrees) or compromise thereof, subject, however, to obtaining Bridgit’s prior written consent in the event such settlement or compromise may affect Bridgit’s rights or interests in or to Bridgit Software (or any Enhancements of New features).
9. Limitation of Liability
IN NO EVENT SHALL BRIDGIT OR CUSTOMER BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE.
IN NO EVENT SHALL BRIDGIT’S TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES TO CUSTOMER OR ANY OTHER ENTITY EVER EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO BRIDGIT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE LIABILITY AROSE.
10. Term and Termination
10.1 Term. This Agreement will be effective for the duration of the Customer’s use of Bridgit’s software.
10.2 Termination for Cause. Either Party may terminate this Agreement for cause as follows:
a) in case of material breach, effective the date that is ten (10) days following the giving of written notice by the non-breaching Party to the breaching Party of the material breach if such breach has not been cured by the breaching Party in that ten (10) day period; or
b) in the case the other Party should become insolvent, or upon the filing by or against such Party of a petition in bankruptcy or reorganization, or upon the filing of a request for the appointment of a trustee, liquidator or receiver for such Party, or upon an assignment for the benefit of creditors by such Party, or such similar action, should said event continue for a period of thirty (30) days.
10.3 Termination for Convenience. Bridgit may terminate this Agreement for convenience after the Initial Term on thirty (30) days’ written notice the Customer.
10.4 Payment on Termination. The Customer shall be responsible to pay the Fee up to the effective date of termination. If this Agreement is terminated mid-month, the Fee shall be prorated.
10.5 Effects of Termination or Expiration. In the event of termination or expiration of this Agreement, on the termination date or expiration date, as applicable, (i) the license granted by Bridgit to the Customer pursuant to Article 2 and the provision of the Services will terminate and expire immediately; (ii) the Customer will immediately cease to access Bridgit Software and shall notify the Customer Users to cease to access Bridgit Software under the terms of this Agreement; and (iii) the Customer will immediately return or destroy, at Bridgit’s sole discretion, all Documentation and any other materials containing Bridgit’s Confidential Information and, at the request of Bridgit, confirm in writing that such information has been returned or destroyed.
10.6 Survival. Any provision of this Agreement which by its nature would survive the termination or expiration of this Agreement, shall survive termination or expiry of this Agreement and will remain in full force and effect thereafter.
11.1 Force Majeure. Neither Party will be responsible or liable in any way for failure or delay in carrying out the terms of this Agreement resulting from any force majeure cause or circumstance beyond its reasonable control, including, but not limited to, fire, flood, other natural disasters, war, labour difficulties, interruption of transit and power telecommunication outages, accident, explosion, civil commotion and acts of any governmental authority; provided, however, that the Party so affected will give prompt notice thereof to the other Party.
11.2 Governing Law. This Agreement and the rights and obligations of the Parties under this Agreement are governed by, and are to be construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario. The Parties agree that the courts of such jurisdiction constitute a convenient forum for any litigation and both parties attorn and submit to the non-exclusive jurisdiction of such courts.
11.3 Dispute Resolution.
a) Negotiation. The Parties will negotiate in good faith and use reasonable efforts to settle any dispute, controversy or claim arising from or related to this Agreement. If the foregoing procedures fail to achieve a mutually satisfactory resolution within sixty (60) days, then either Party may seek any remedy otherwise available at law or at equity.
b) Interim Relief. Notwithstanding anything herein to the contrary, nothing in this Section will preclude either Party from seeking interim or provisional relief in the courts in the jurisdiction designated in Section 11.2, including a temporary restraining order, preliminary injunction or other interim equitable relief. This Section 11.3(b) will be specifically enforceable.
11.4 Non-Assignment. The Customer may not assign this Agreement, or any rights or obligation hereunder, in whole or in part without the prior written consent of Bridgit, and any attempt to assign this Agreement without such consent will be deemed null and void. This Agreement will enure to the benefit of and be enforceable by and against the Parties and their successors and permitted assigns, and if applicable, the Customer’s personal representative or estate trustee.
11.5 Entire Agreement; Amendment. This Agreement, including all the Schedules, constitute the entire agreement between Bridgit and the Customer with respect to the subject matter hereof. In the event of a contradiction between the body of this Agreement or one of the Schedules, the provisions contained in this Agreement will prevail. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each Party.
11.6 Independent Contractors. The Parties hereto are and will remain independent contractors. Nothing herein will be deemed to establish a partnership, joint venture or agency relationship between the Parties. Neither Party will have the right to obligate or bind the other Party in any manner to any third Party.
11.7 Severability. The invalidity or unenforceability of any provision hereof will in no way affect the validity or enforceability of any other provision. Any provision declared invalid or unenforceable by a court of competent jurisdiction will be deemed to be automatically amended and replaced by a valid and enforceable provision that accomplishes as far as possible the purpose and intent of such original provision, and the remaining terms and conditions of this Agreement will remain in full force and effect.
11.8 Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof solely with respect to such Party, but no such waiver will be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. The waiver by either Party of any right hereunder or of the failure to perform or of a breach by the other Party will not be deemed a waiver of any other right hereunder or of any other breach or failure by such other Party whether of a similar nature or otherwise.
11.9 Notice. Any notice or other communication required or permitted hereunder will be in writing and shall be sufficiently given if delivered by hand or sent by registered mail, courier, email or facsimile addressed to the other Party at the address set out below or to such other person or address as the Parties may from time-to-time designate in writing delivered pursuant to this notice provision. Any such notices, requests, demands or other communications shall be deemed received and effective: (i) upon delivery, if delivered personally; (ii) on the date of receipt of facsimile, mail, email or courier, where a confirmation of receipt is provided for such facsimile, mail, email or courier; or (iii) on the 5th Business Day after demonstrable proof of sending by facsimile, mail, email or courier, where confirmation of receipt is not provided for such facsimile, mail, email or courier.
11.10 Counterparts. This Agreement may be executed in counterparts and may be executed and delivered by email or other electronics means, and all such counterparts will constitute one and the same instrument.
SCHEDULE A - SERVICE LEVELS
Bridgit commits to Bridgit Software uptime of 99% measured monthly. If Bridgit fails to meet such service commitment it will report the remedial steps taken to address such service commitment failure.
Uptime measurements will not include scheduled downtime. Bridgit will comply with scheduled downtime schedules established by Bridgit on one day’s notice, provided that scheduled downtime may be designated upon 24 hours’ notice for components of Bridgit Software which are not critical.
Bridgit will address incidents in accordance with the following provisions:
Level 1 Severity is any issue that directly affects the Customer’s ability (or a Customer User) to use Bridgit Software.
Level 2 Severity is any issue that interrupts the normal course of business of a Customer (or a Customer User) but does not directly impact the ability to use Bridgit Software
Level 3 Severity is any issue that does not impact business processes or the ability to use Bridgit Software.
Severity / Triage Time / Workaround or Resolution
Level 1 / Within 1 hour / Within 24 hours from triage
Level 2 / Within 12 hours / Within 27 hours from triage
Level 3 / Within 48 hours / Next Release
* Resolution refers to the ability to circumvent the problem. This may be done by fixing a defect and releasing new code or by online/offline workarounds until the problem is fixed.
All issues will be reported via Bridgit’s Support Centre. Login credentials will be provided upon contract signing.