Last Updated: January 6th, 2025
'YOU MUST READ THE BELOW IN ITS ENTIRETY BEFORE PROCEEDING TO ACCESS THE EXAMEN SYSTEMS. THIS AGREEMENT FORMS A BINDING CONTRACT BETWEEN YOU AND US WHEN ACCEPTED BY YOU. YOU ACCEPT THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) BY: (1) ACCESSING OR USING THE EXAMEN SYSTEMS; (2) INDICATING ACCEPTANCE OF THESE TERMS WHEN THEY ARE PRESENTED ONLINE, SUCH AS BY CHECKING A BOX CAPTIONED WITH ACCEPTANCE LANGUAGE OR CLICKING AN ICON BEARING AN “ACCEPT” OR SIMILAR LEGEND OR BY OTHERWISE ELECTRONICALLY SIGNING THIS AGREEMENT; OR (3) EXERCISING OR PURPORTING TO EXERCISE ANY OF THE RIGHTS GRANTED TO YOU UNDER THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS AUTHORITY TO REPRESENT THE ENTITY AND CREATE A LEGALLY BINDING CONTRACT. IF YOU DO NOT AGREE TO THIS AGREEMENT OR HAVE SUCH AUTHORITY, YOU MAY NOT USE THE EXAMEN SYSTEMS.
This Agreement is entered into by and between Examen, Inc., a Delaware corporation (“Examen”) and the party who accepts the Agreement and its employees, agents, contractors and/or any other entity on whose behalf you accept this Agreement (individually and collectively, “Customer”), as of the date of such acceptance (the “Effective Date”). Capitalized terms used herein but not otherwise defined shall have the meanings prescribed in Appendix I, attached hereto and incorporated herein. Inconsideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Acknowledgement.
Examen is a technology provider, and is not a licensed general contractor, serviceman, material man, or laborer nor is Examen directly engaged in the construction, repair or maintenance of real property and any improvements (e.g. buildings, parking lots, hardscape, landscape, etc.) located on real property. Examen’s Services through the Examen Systems are purely administrative. Examen is not a licensed general contractor nor does Examen purport to hold itself out as a licensed general contractor; as such, Examen may immediately terminate any portion of the Services (in whole or in part) ifExamen has been notified by any federal, state or local governmental agency or municipality that Examen’s activities require, or may require, any specific licenses. While the Examen Systems may offer recommendations for certainContractors to perform Professional Services, Examen does not endorse any particular Contractor, nor does Examen represent or warrant any ProfessionalServices performed or contracted to be performed or authority of Customer orContractor (as the case may be) to enter into any relationship. ANY AND ALL TERMS, CONDITIONS, RIGHTS, AND OBLIGATIONS RELATED TO THE PROVISION OF PROFESSIONAL SERVICES OR REFERENCED ON THE EXAMEN SYSTEMS SHALL BE GOVERNED BYAN INDEPENDENT CONTRACT BETWEEN CUSTOMER AND CONTRACTOR(S). ANY SUCH CONTRACTOR OTHER AGREEMENT BETWEEN OR AMONG CUSTOMER AND CONTRACTOR(S) ARE SEPARATE FROM AND SUPPLEMENTAL TO THIS AGREEMENT. IN NO WAY SHALL SUCH A CONTRACT OR AGREEMENT IMPOSE ANY ADDITIONAL OBLIGATIONS ON EXAMEN OR LIMIT THE RIGHTS TO WHICH EXAMEN IS ENTITLED HEREUNDER. Customer must rely solely on its own judgement in making all decisions in connection with use of the Examen Systems and any resulting financial decisions Customer elects to make, including determining aContractor to use for Professional Services, if any. While the Examen Systems may provide recommendations for Professional Services and preferred Contractors through its proprietary software and algorithms, Customer remains responsible for any and all decisions regarding whether or not to obtain ProfessionalServices and what Contractor(s) to employ for said Professional Services. Examen shall not be liable for any damages or costs of any type arising out of or in any way connected with Customer’s use of Professional Services provided by any other party. Customer understands that Contractors may store requestinformation and any other information provided by Examen or received byContractors in bidding on a request for Professional Services. Customer agreesto notify any particular Contractor directly if they no longer wish to receive communications from them.
2. Services
2.1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Examen hereby grants Customer anon-exclusive, non-transferable (except in compliance with Section 14.6) right to access and use the Services during the Term, solely for use by Authorized Users and in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and solely for the purpose of Customer’s internal business operations. Examen shall provide to Customer (or to its AuthorizedUsers directly) the Access Credentials within a reasonable time following the Effective Date and promptly thereafter to new Authorized Users as requested by Customer. Examen has and will retain sole control over the operation, provision, maintenance and management of Examen Materials and Examen reserves the right, at its sole discretion, to engage third parties (each, a “Subcontractor”) from time to assist in performing the Services. Notwithstanding the foregoing, for the avoidance of doubt, no Contractor shall be deemed a Subcontractor of Examen. From time to time, Customer and Examen shall specify particular Examen Services, along with their applicable pricing and terms, on addenda to thisAgreement (each an “Order Form”). In the event of any conflict between thisAgreement and an Order Form, the latter will control if the Order Form explicitly references the language in this Agreement which will not control; otherwise, this Agreement will control.
2.2. Administrative Services. To the extent thatCustomer engages Examen to provide Administrative Services, Examen will make good faith efforts to keep Customer reasonably informed by way of the ExamenSystems of key milestones provided by each Contractor in the provision ofProfessional Services. Notwithstanding the foregoing, Customer acknowledges and agrees that Examen is reliant upon the information provided by Customer and each respective Contractor; as such, Administrative Services are subject to delays and/or missing information from time to time, none of which shall be deemed to create a material breach of Examen’s obligations to Customer. WhileExamen will make good faith efforts to inform Customer of any material updates with respect to Professional Services, Customer acknowledges that there may be instances where a Contractor is present at Owner’s premises and/or has commenced performance of Professional Services without the knowledge of Examen.In each such instance, Customer is advised to contact the Contractor(s) directly so as to ensure due performance and no unreasonable disruptions.
2.3. Changes. Examen reserves the right, in its sole discretion, to make any changes to the Services and Examen Materials that it deems necessary or useful to maintain or enhance Examen’s Services generally or to comply with applicableLaw.
2.4. Suspension or Termination of Services. Examen may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized Users’, or any other Person’s access to or use of all or any part of the Services or Examen Materials, without incurring any resulting obligation or liability, if: (a) Examen receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Examen to do so; or (b) Examen believes, in its reasonable discretion, that:
(i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or
(iii) this Agreement expires or is terminated.
For the avoidance of doubt, to the extent that this Agreement is suspended or terminated for any reason (or no reason at all), Customer shall remain responsible for any and all obligations for Professional Services that Customer has contracted with Contractor(s), and Examen shall have no further obligation or liability hereunder or thereunder to either Customer or Contractor(s) (as the case may be).
This Section 2.3 does not limit any of Examen’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. Restrictions:
Customer shall not, and shall not permit any other Person to, access or use the Services or Examen Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as expressly permitted by this Agreement:
(a) copy, modify, or create derivative works or improvements of the Services or Examen Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Examen Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software-as-a-service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Examen Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Examen Materials, or access or use the Services or Examen Materials other than by an Authorized User through the use of his or her own valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Examen Systems any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Examen Systems, or Examen’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Examen Materials, including any copy thereof;
(h) access or use the Services or Examen Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Examen Customer), or that violates any applicable Law;
(i) access or use the Services or Examen Materials for purposes of competitive analysis of the Services or Examen Materials, the development, provision, or use of a competing software service or product, or any other purpose that is to Examen’s detriment or commercial disadvantage;
(j) use the Examen Services on any third-party site in violation of the third party’s website terms of use or privacy policy, or for the unauthorized collection of personally identifiable information;
(k) use the Examen Services in any manner that would violate the Examen Privacy Policy, available at www.examensolutions.com/privacy (as may be updated from time to time) and hereby incorporated into this Agreement; or
(l) otherwise access or use the Services or Examen Materials beyond the scope of the authorization granted under Section 2.1.
4. Customer Obligations.
4.1. Customer Systems and Cooperation. Customer shall, at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; and (b) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems. Customer shall also bear sole responsibility for all access to and use of Examen Materials by any Person through the Customer Systems or any other means controlled by Customer or any Authorized User, including:
(i) information, instructions, or materials provided by any of them to the Services or Examen;
(ii) results obtained from any use of the Services or Examen Materials; and
(iii) conclusions, decisions, or actions based on such use.
4.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control necessary to stop the activity or threatened activity and mitigate its effects, including, where applicable, discontinuing and preventing any unauthorized access to the Services and Examen Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access; and (b) notify Examen of any such actual or threatened activity.
5. Security
5.1. Examen Systems and Security Obligations. Examen shall exercise commercially reasonable efforts to prevent unauthorized exposure or disclosure of Customer Data, including maintaining, implementing, and complying with commercially reasonable administrative, technical, and physical safeguards. Examen shall review its security controls regularly, but no less than annually, and update and maintain them to comply with applicable Laws, technology changes, and best practices.
5.2. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Examen Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer through its Customer-authorized agents the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services by approving the activation and deactivation of Customer-user accounts through written communication to Examen at (help@examensolutions.com); (ii) cause its Customer-authorized agents and Authorized Users to use strong password creation and protection practices and maintain strict confidentiality of their user names and passwords used for authentication to the Customer Systems; and (iii) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services, such that the Services are used for lawful purposes that comply with all applicable federal, state and foreign privacy and data protection Laws. Customer shall ensure that its Customer-authorized agents or Authorized Users report system availability or other system issues (security or otherwise) to Examen Support by emailing (help@examensolutions.com).
6. Fees and Payment
6.1 Fees and Payment. Customer shall pay Examen the fees set forth in each Order Form (“Fees”) in accordance with this Section 6. Unless otherwise specified in the applicable Order Form, Customer shall pay all Fees, as described on the Order Form for the applicable service tier, via credit card, ACH, or wire transfer, at the time of signup, in which case Customer’s account(s) will be billed immediately. If the Fees are recurring over designated time periods stated on an Order Form, then the payment method on file will be charged at the start of each pay period. Customer shall make all payments hereunder in US dollars via credit card. If Customer fails to make any payment when due, then, pursuant to Section 12, Examen may terminate this Agreement immediately and without liability or notice to Customer.
6.2 Billing and Collection. Customer acknowledges and agrees that payments made by Customer to Contractor(s) in connection with the Professional Services Contract may be billed and collected by Examen using accurate credit card, ACH, or wire information provided by Customer. Customer further understands and agrees that Examen is only providing billing and collection services to Customer, and is not a party to the Professional Services Contract between Customer and Contractor(s) nor is Examen responsible for any obligations of Customer or Contractor(s) via the Professional Services Contract, including (without limitation) the payment of amounts owed to Contractor(s) within the payment timelines established between Customer and Contractor(s). Upon receipt of payment(s) from Customer, Examen will pay to Contractor(s) the Contract Price set forth in the Professional Services Contract (in accordance with its terms), less the Procurement Fee (as set forth in the respective Order Form) payable to Examen. Payments to Contractor(s) will be made by Examen within fourteen (14) days of receipt of the payment from Customer. Under no circumstances will Examen be responsible for any late payments made to Contractor(s) by way of Customer’s failure to provide payments to Examen within fourteen (14) days of when payment(s) are due to Contractor(s).
6.3 Cancellations, Disputes, and Chargebacks. Customer shall be responsible for all cancellations by Customer and resolving all disputes with Contractor(s) related to payments for Professional Services, including any chargebacks that may occur with respect to Customer's credit card companies. Examen will use commercially reasonable efforts to assist Customer with respect to any cancellations, disputes, and chargebacks.
6.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Examen’s income.
7. Confidentiality
7.1 Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Except as otherwise set forth under this Section 7.1, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, as well as information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, all Examen Materials are the Confidential Information of Examen. Confidential Information does not include information that:
(a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;
(b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement;
(c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
(d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.2 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 7.3, not disclose or permit access to Confidential Information other than to its Representatives who:
(i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement;
(ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.2; and
(iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7.
7.3 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall:
(a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.2; and
(b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.3, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
8. Intellectual Property Rights.
8.1 Examen Materials. All right, title, and interest in and to Examen Materials, including all Intellectual Property Rights therein, are and will remain with Examen. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of Examen Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to Examen Materials are expressly reserved by Examen.
In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Examen an assignment of all right, title, and interest in and to the Operations Data, including all Intellectual Property Rights relating thereto. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Services, Examen Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, Examen Materials, and the Third-Party Materials are and will remain with Examen and the respective rights holders in the Third-Party Materials.
8.2 Customer Data. As between Customer and Examen, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3. Notwithstanding anything to the contrary, Examen shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), whereby Examen will be free to:
(i) use such information and data to train machine learning models, improve and enhance the Services, and for other development, diagnostic, and corrective purposes in connection with the Services and other Examen offerings; and
(ii) disclose such data solely in aggregate or other pseudonymized form in connection with its business.
8.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Examen, its Subcontractors, and Examen Personnel to enforce this Agreement and exercise Examen’s, its Subcontractors’ and Examen Personnel’s rights, and perform Examen’s, its Subcontractors’ and Examen Personnel’s obligations hereunder.
9. Representations and Warranties
9.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Examen that:
(i) Customer is the rightful owner of and/or has sufficient rights to each Property Serviced necessary to permit the provision of Examen Services and Professional Services conducted by Contractors (if any) and grants Examen a limited license to enter each Property Serviced in order to enable Examen to provide the Services; and
(ii) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Examen and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
9.3 Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, ALL SERVICES AND EXAMEN MATERIALS ARE PROVIDED “AS IS.” EXAMEN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EXAMEN MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR Examen MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. FOR THE AVOIDANCE OF DOUBT, THIRD-PARTY MATERIALS INCLUDE (WITHOUT LIMITATION) ANY MATERIALS OF A CONTRACTOR.
9.4 Additional Disclaimers
ANY REPRESENTATIONS OR WARRANTIES MADE BY AND BETWEEN A CONTRACTOR AND CUSTOMER ARE SOLELY BETWEEN SAID CONTRACTOR(S) AND CUSTOMER. EXAMEN EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES MADE BY A CONTRACTOR, INCLUDING (WITHOUT LIMITATION) ANY OBLIGATION TO ENFORCE ANY REPRESENTATION OR WARRANTY BY AND BETWEEN A CONTRACTOR AND CUSTOMER. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXAMEN EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS THAT EXAMEN:
(i) IS ENGAGED IN GENERAL CONTRACTOR ACTIVITIES;
(ii) IS RESPONSIBLE FOR THE MANAGEMENT OF ANY PROFESSIONAL SERVICES CONTRACT;
(iii) IS RESPONSIBLE FOR PROCURING, OBTAINING OR MAINTAINING ANY SPECIAL PERMITS, LICENSES OR REGULATIONS WITH RESPECT TO THE PROFESSIONAL SERVICES PERFORMED BY A CONTRACTOR;
(iv) VALIDATING THAT THE PROFESSIONAL SERVICES PERFORMED OR TO BE PERFORMED HAVE OR WILL BE COMPLETED IN COMPLIANCE WITH APPLICABLE LAWS AND IN GOOD WORKMANSHIP.
ANY MATERIALMAN’S LIENS OR OTHER LIENS THAT MAY BE ASSESSED ON A PROPERTY SERVICED ARE SOLELY BETWEEN CONTRACTOR AND CUSTOMER; EXAMEN SHALL HAVE NO OBLIGATION TO ANY PARTY WITH RESPECT TO ANY LIENS THAT MAY BE ASSESSED ON A PROPERTY SERVICED.
9.5 Disclaimer of Recommendations
IN CONNECTION WITH THE SERVICES, EXAMEN MAY PROVIDE PERIODIC RECOMMENDATIONS TO CUSTOMER FOR:
(i) PROPOSED PROFESSIONAL SERVICES AND/OR
(ii) CONTRACTORS TO PERFORM PROFESSIONAL SERVICES.
ANY SUCH RECOMMENDATIONS ARE PROVIDED IN GOOD FAITH BY EXAMEN BASED ON THE THEN-AVAILABLE INFORMATION. IN MAKING DECISIONS ON WHETHER OR NOT TO CONTRACT FOR PROFESSIONAL SERVICES WITH CONTRACTORS, CUSTOMER MUST RELY ON THEIR OWN EXAMINATION OF THE RECOMMENDED WORK TO BE PERFORMED AND INDEPENDENT INVESTIGATION OF ANY KNOWN OR LATENT ISSUES THAT MAY IMPACT THE SIZE, SCOPE, COST, OR NEED TO CONDUCT THE RECOMMENDED PROFESSIONAL SERVICES ON CUSTOMER’S PROPERTY(IES). EXAMEN CANNOT, AND WILL NOT, INDEPENDENTLY VERIFY THE PROFESSIONAL SERVICES TO BE PERFORMED, THE COST OF ANY SAID PROFESSIONAL SERVICES, AND THE VERACITY OF ANY CONTRACTORS HOLDING THEMSELVES OUT AS HAVING THE SKILL, CARE, AND COMPETENCY TO PERFORM THE PROFESSIONAL SERVICES. AS SUCH, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT EXAMEN WILL HAVE NO LIABILITY FOR ANY INACCURACY OR INADEQUACY OF THE RECOMMENDATIONS PROVIDED TO CUSTOMER AND THE INFORMATION PROVIDED BY, TO, OR FROM EXAMEN.
10. Release and Indemnification.
10.1 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Examen and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an “Examen Indemnitee”) from and against any and all Losses incurred by such Examen Indemnitee resulting from any Action by a third party (other than an Affiliate of an Examen Indemnitee) that arises out of or results from, or are alleged to arise out of or result from: (a) Customer Data, including any Processing of Customer Data by or on behalf of Examen in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Examen’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Examen; (c) allegations of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
10.2 Indemnification Procedure. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent. The Indemnitee’s failure to perform any obligations under this Section 10.2 will not relieve the Indemnitor of its obligations under this Section 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
10.3 Release. With respect to any dispute between one or more Contractors and Customer, each party expressly releases Examen (and its affiliates and subsidiaries, and each of their respective shareholders, officers, directors, employees, and agents) from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the Services, this Agreement, or any transactions consummated in connection therewith. Each party expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this paragraph to include only those claims which that party may know or suspect to exist in its favor at the time of agreeing to this paragraph.
10.4 California Civil Code § 1542. Customer acknowledges that they have been advised to consult with legal counsel and is familiar with the provisions of California Civil Code § 1542, a statute that otherwise prohibits the release of unknown claims, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Customer acknowledges that they may later discover claims or facts in addition to or different from those which Customer now knows or believes to exist with regards to the subject matter of this Agreement, and which, if known or suspected at the time of executing this Agreement, may have materially affected its terms. Nevertheless, Customer, being aware of said code section, agrees to expressly waive any rights they may have thereunder, as well as under any other statute or common law principles of similar effect.
11. Limitations of Liability.
IN NO EVENT WILL EXAMEN OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EXAMEN AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO EXAMEN UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Term and Termination.
The term of this Agreement shall commence on the Effective Date and shall continue until the termination of the last Order Form or other agreement that incorporates this Agreement, unless terminated as permitted herein. In addition to any other express termination right set forth herein or on an applicable Order Form, Examen may terminate this Agreement immediately and without liability or notice to Customer if Customer: (i) fails to pay any amount when due, or (ii) breaches any of its obligations under Section 3 or Section 5.2; or (iii) if Examen files a petition of any type as to its bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors, or goes into liquidation or receivership.
Regardless of the reason for such termination, Customer shall pay for all Services provided to Customer prior to the termination date.
13. Surviving Terms.
The provisions set forth in this Agreement, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
14. Miscellaneous.
14.1. Limited Power of Attorney. Customer hereby constitutes and appoints, effective as of the Acceptance Date, Examen and its successors and assigns as the true and lawful attorney-in-fact of Customer solely to act for and in the name of Customer to execute in Customer’s name each Professional Services Contract that Customer has indicated in writing (including, without limitation, by e-mail or indicating acceptance via the Examen Systems) to Examen that Customer wishes to enter into with a given Contractor. Customer ratifies and confirms that Examen, as an agent and attorney-in-fact, shall be empowered to do or cause to be done all acts by virtue of this limited power of attorney until the earlier of (i) the termination of this Agreement or (ii) Customer notifies Examen in writing of the revocation of this limited power of attorney.
14.2. Non-Circumvention. Neither Customer nor any Contractor shall, directly or indirectly: (i) enter into any transaction with any party introduced by Examen similar to, in competition with, or which otherwise could have the effect of preventing Examen from receiving the full benefit of the transactions contemplated by this Agreement; (ii) solicit any party to enter into any such transaction; or (iii) induce, solicit, procure, or otherwise encourage any representative or third party, or respond to any solicitation from a third party, to enter into any such transaction, in each case, except with the prior express written consent of Examen.
14.3. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party.
14.4. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other party, provided, however, that Examen may, without Customer’s consent, include Customer’s name and other indicia in its lists of Examen’s current or former customers of Examen in promotional and marketing materials.
14.5. Notices. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically to the email address provided when you accept this Agreement satisfy any legal requirement that such communications be in writing. All notices, requests, consents, claims, demands, waivers and other communications from you to Examen under this Agreement have binding legal effect only if in writing and addressed to Examen as follows:
- To Examen by E-mail: ricardo@examensolutions.com
Attention: Ricardo Chamorro
Title: Chief Executive Officer - To Examen by Surface Mail:
Examen, Inc.
Attention: 299 Fremont St, Unit 1207
San Francisco, CA, 94105
Notices sent to Examen in accordance with this Section 14.5 will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by e-mail, in each case, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (iv) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.7 Entire Agreement. This Agreement, together with the applicable Order Form, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
14.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Examen’s prior written consent. No assignment, delegation or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
14.9 No Third-Party Beneficiaries. Except as set forth in Section 12, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14.10 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14.11 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.12 Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performance under this Agreement due to any cause beyond its reasonable control, including acts of God, war, terrorism, labor strikes, power outages, and government actions.
14.13 Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of California, without regard to its conflict of laws principles. Each party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, for the resolution of any disputes hereunder.
Appendix I
Definitions
“Access Credentials”means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit,notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory orother, whether at law, in equity or otherwise.
“Administrative Services” means the provision of administrative and ministerial services by Examen through use of the ExamenSystems to track, monitor and notify Owner of Professional Services, including(if elected) the billing and collection services for and on behalf of Owner in connection with a Professional Services Contract.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized User” meansCustomer’s employees, consultants, contractors and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Contractors” means the person(s) holding themselves out to be licensed service professionals who purport to have the appropriate level ofskill, expertise, workmanship, licenses and permits necessary to perform and complete the Professional Services by submitting a proposal via the ExamenSystems in response to an RFP.
“Customer Data” means information, data and other content, in any form or medium, which is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.For the avoidance of doubt, Customer Data does not include Operations Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Failure” means Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement, or Customer’s exceeding any limitation specified in the Order Form.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Examen Materials” means the Services and Examen Systems and any and all other information, data, and other content that are provided or used byExamen or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Examen Systems. For the avoidance of doubt, Examen Materials include Operations Data and any information, data or other content derived from Examen’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Examen Personnel”means all individuals involved in the performance of Services as employees, agents or independent contractors of Examen or any Subcontractor (as defined inSection 2.1).
“Examen Systems” means the information technology infrastructure used by or on behalf of Examen in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Examen or through the use of third-party services.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computercode, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby; or (b) preventCustomer or any Authorized User from accessing or using the Services or ExamenSystems as intended by this Agreement.
“Intellectual PropertyRights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees.
“Operations Data” means data and information related to Customer’s use of the Services that is used byExamen in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of theServices.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, un incorporated organization, trust, association or other entity.
“Process”, “Processing” or “Processed” means to take any action or perform any operation or setof operations that the Services are capable of taking or performing on any data, information or other content.
“Professional Services” means those services requested by Customer to be performed by Contractor(s) through use of the Examen Systems.
“Professional Services Contract” means the legal agreement by and between Customer and Contractor(s) governing the provision of ProfessionalServices.
“Representatives”means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.