HomeMy WebLinkAbout25A - AGMT FOR MANAGEMENT SOFTWAREREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
SEPTEMBER 1, 2020
TITLE:
APPROVE AGREEMENT WITH PROCORE
TECHNOLOGIES, INC. FOR A PROJECT
MANAGEMENT SOFTWARE LICENSE IN
TOTAL AMOUNT NOT TO EXCEED
$250,000 FOR A FIVE-YEAR TERM
(NON -GENERAL FUND)
CLERK OF COUNCIL USE ONLY:
❑ As Recommended
❑ As Amended
❑ Ordinance on 1� Reading
❑ Ordinance on 2d Reading
❑ Implementing Resolution
❑ Set Public Hearing For
K6301110U1q�iC�7
/s/ Kristine Ridge FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager to execute an agreement with Procore Technologies, Inc., for licensing
of ProCore Technologies Project Management Pro software for a one-year period beginning
September 1, 2020, and expiring August 31, 2021, in an annual amount of $50,000, with the option
to renew for up to four additional years for a total amount not to exceed $250,000, subject to non -
substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The Public Works Agency is responsible for designing, building, and maintaining the public sanitary
sewers and water facilities in the City of Santa Ana. The Public Works Agency oversees all aspects
of project delivery for capital improvement projects, including managing project design and
construction. The City's water and sewer enterprises will be making significant reinvestments into
the public water and sewer systems which will yield many capital improvement projects over the
next five years. In FY 2020-21, there are approximately 31 active water and sewer capital
improvement projects, totaling nearly $36 million in expenditures, managed by the Public Works
Agency in the City. Coordination of all project phases across divisions and departments is critical
to ensuring efficient use of the City's resources.
In order to improve on current capital project delivery, staff has identified the need for a
comprehensive and cohesive project delivery and construction management software application.
Utilizing a dedicated project management software application will increase efficiencies by
streamlining project documentation, providing the ability to digitally log inspections and conditions
in the field via mobile devices, and by improving communication between engineers, inspectors,
and contractors. A program that centralizes data and strengthens field -to -office communications
will also help deliver more projects on time and on budget.
25A-1
Approve Agreement with Procore Technologies, Inc. for Project Management Software
September 1, 2020
Page 2
This software application is exempt from bidding under SAMC 2-807(a), which so exempts
purchases over $25,000 of "materials, supplies, labor, and equipment whenever it shall appear
that there is only one (1) reasonably available source or where solicitation of bids would for any
reason be an idle act". Here, the application is very industry -specific and unique to this vendor.
It is not generally available like a typical software program. As a result, the solicitation of bids
would have been unproductive and led to further delay for a product that is needed for projects
currently underway.
Staff recommends approval of the purchase of a license subscription with ProCore Project
Management Pro (ProCore) to assist in the delivery of City projects. ProCore is a widely -used
program that provides instant data transmission across PC and mobile applications, allowing for
real-time delivery of accurate project information. The cloud -based platform has intuitive tools to
assign tasks, respond to comments and questions, produce and access reports, and manage
budgets and costs. In addition, ProCore has the ability to integrate with other platforms currently
being used by the City, eliminating the need to purchase any additional software in order to
successfully implement its usage.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funding for this agreement is budgeted and available in the Fiscal Year 2020-21 Water
Administration & Engineering Account (No. 06017645-62300) and will be budgeted and available
for expenditure, annually, in the same account:
Fiscal Year
Accounting Unit —
Fund
Accounting Unit, Account
Amount
Account No.
Description
Description
FY 2020-21
06017645-62300
Water
Water Admin/Engineering,
$50,000
Fund
Contract Services -Professional
Option Years
FY2021-22
06017645-62300
Water
WaterAdmin/Engineering,
$50,000
Fund
Contract Services -Professional
FY 2022-23
06017645-62300
Water
Water Admin/Engineering,
$50,000
Fund
Contract Services -Professional
FY 2023-24
06017645-62300
Water
Water Admin/Engineering,
$50,000
Fund
Contract Services -Professional
FY 2024-25
06017645-62300
Water
Water Admin/Engineering,
$50,000
Fund
Contract Services -Professional
Total Amount:
$250,000
25A-2
Approve Agreement with Procore Technologies, Inc. for Project Management Software
September 1, 2020
Page 3
Fiscal Impact Verified By: Kathryn Downs, CPA, Executive Director— Finance and Management
Services Agency
Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency
Exhibits: 1. Procore Technologies, Inc. Order Form
2. Procore Technologies, Inc. Subscription Terms
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25A-7
EXHIBIT 2
PROCORE®
PROCORE SUBSCRIPTION TERMS
These terms, including any attached exhibits (collectively, "Terms') are entered into as of the effective
date listed on the Order Form ("Effective Date') between PROCORE TECHNOLOGIES, INC., a Delaware corporation,
having its principal place of business at 6309 Carpinteria Avenue, Carpinteria, CA 93013 ("Procore" or "Party')
and the customer identified on the Order Form ("Customer' or "Party'), collectively the "Parties."
In consideration of the mutual covenants and conditions contained herein, the Parties agree as follows:
1. BACKGROUND. Procore has developed certain construction project management Software (defined
below), to which it provides access as part of its Services (defined below). Customer wishes to enter into this
Agreementfora subscription to the Services identified on an Order Form. Procore desires to make those Services
available to Customer subject to the terms of this Agreement.
2. DEFINITIONS. The capitalized terms listed below have the following meanings:
2.1 "Agreement" means, collectively, the terms of the Order Form and these Terms
2.2 "Authorized User' means any individual who is authorized by virtue of such individual's
relationship to, or permissions from, Customer, to access and receive Customer Content/Customer Data and use
the Services on Customer's behalf pursuant to Customer's rights under this Agreement.
2.3 "Construction Volume" means the aggregate dollar value of the construction work performed,
planned, or put in place for all Customer Projects for which Customer utilizes the Services during a given time
period, most often a one-year period. The Order Form shall set forth the service period and amount of
Construction Volume purchased by Customer.
2.4 "Customer Content' means any content created by or on behalf of Customer or an Authorized
User in connection with the Services and Customer Projects.
2.5 "Customer Data' means personally identifiable information provided by Customer to Procore
regarding natural persons.
2.6 "Customer Project' means each distinct construction project for which Customer utilizes the
Services constrained by a specific scope, budget, and schedule, as specified in a construction project agreement.
The lifecycle phases for typical construction projects may include initiation, planning, design, demolition,
construction, commissioning, and closeout.
2.7 "Data Center Region' means a location in which Procore or its affiliates maintain data
processing operations, including the United States, Canada, the European Union, Australia, and the United
Kingdom.
2.8 "Documentation' means online user guides provided and updated by Procore via
https://support.procore.com/products/online/user-guide in connection with Customer's subscription to the
software Services specified on the applicable Order Form.
2.9 "Enhancements' means the following: minor modifications, revisions, and corresponding
Documentation with respect to the Services, including the addition of enhancements or improved performance
made available by Procore to the Services; however, Enhancements do not include the addition of New Features
not originally included as part of the Services described on a particular Order Form.
2.10 "Maintenance Modifications' means bug fixes, patches, modifications, or revisions to the
Services that correct errors therein; however Maintenance Modifications do not include New Features not
originally included as part of the Services described on a particular Order Form.
Procore Technologies, Inc. MSA_2019_V1
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2.11 "New Features' means those new or materially different technological or service features
and/or tools that Procore develops over time, which are, in Procore's discretion, offered to Customers as
additional features fora fee and are distinct from included Enhancements and Maintenance Modifications.
2.12 "Order Form" means the order form document signed by both Parties that is attached to and
governed by these Terms, on which the Customer is identified, and which specifies certain other agreed -upon
terms including Customer's specific subscription information pertaining to the Services. The Parties may enter
into additional Order Forms during the Term, each of which will be subject to these Terms.
2.13 "Project Caps' means the maximum number of simultaneous Customer Projects, as stated on
the Order Form.
2.14 "Services" means (1) Procore's proprietary Software offerings, and (2) any professional
services that are specified on the Order Form.
2.15 "Site" means app.procore.com and all associated Procore mobile applications that utilize
Procore's Software.
2.16 "Software" means Procore's proprietary software programs and any associated user interfaces
and related technology that Procore uses to provide the Services, and that Procore makes available pursuant to
this Agreement, including any Enhancements and Maintenance Modifications thereto.
2.17 "Subscription Fee" means the agreed -upon subscription fee(s) for the Services as stated on
the Order Form.
3. PROVISION OF SERVICE/RESPONSIBILITIES
3.1 Subscription Rights and Access. Subject to the terms of this Agreement (including payment
of fees), Procore will provide Customerwith access to the Services during the Term. Customer, via its Authorized
Users, may access and use the Services only for its intended purposes, in accordance with the specifications set
forth in any Documentation and for Customer's internal business use and the limits on Construction Volume,
Project Caps, Customer Projects, and/or other use restrictions specified on the applicable Order Form. Subject
to Customer's payment of the fees set forth in the Order Form, Procore shall provide to Customer the necessary
passwords, security protocols and policies, and network links or connections to allow Customer and its Authorized
Users to access the Services.
3.2 Support; Compatibility. Procore shall provide the Customer and its Authorized Users with (a)
supportforthe Services as outlined in Exhibit A, and (b) access to Enhancements and Maintenance Modifications
as they become available. Customer and its Authorized Users are solely responsible for ensuring that they have
sufficient and compatible hardware, software, telecommunications equipment, and Internet service necessary for
the use of the Site and Services.
3.3 Site Updates. Procore may, in its discretion, change, modify, upgrade, or discontinue any
aspect or feature of the Site in whole or in part. Such changes, upgrades, modifications, additions, or deletions
will be effective immediately upon notice thereof, which may be made by posting such changes to the Site. In the
event Procore modifies or discontinues any content or feature of the Site which results in a material reduction of
functionality or degradation of the Site, Procore shall provide comparable functionality. Procore may, from time
to time, develop New Features, which will be offered to customers for additional fees.
3.4 Limitations. Customer shall not, and shall not authorize or permit any Authorized User to (a)
rent, loan, or license rights to access and/or use the Services and/or the Software (except as specifically provided
herein); (b) copy, modify, disassemble, decompile, or reverse engineer software included as part of the Services;
(c) share identification or password codes with persons other than Authorized Users, or permit Customer's
account to be accessed by individuals who are not Authorized Users; (d) access, use, or permit a third party to
access or use the Services or Software for purposes of competitive analysis, including the development,
Procore Technologies, Inc. MSA_2019_V1
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provision, or use of a competing software or service or for any other purpose that may be to Procore's detriment
or commercial disadvantage; (e) use the Services in any way not expressly provided for in this Agreement; (f)
use the Services in a manner that infringes the intellectual property, privacy, or other rights of third parties; (g)
remove any title, trademark, copyright, or restricted rights notices or labels from the Services; (h) interfere with
or disrupt the integrity or performance of the Services; or (i) expose Procore to any malware, including viruses,
worms, or any other malicious computer programming codes that may damage Procore or third -party systems
or data. Customer shall be responsible for all activities that occur under Customer's account and for all actions
of Customer or its Authorized Users and both Customer and Authorized Users shall use the Site and the Services
in accordance with the Terms of Service located at https://www.procore.com/fine-print/terms. Procore will provide
a notification to Customer, via the Site, of updates to the Terms of Service. It is Customer's responsibility to
review the Terms of Service from time to time on the Site to ensure that Customer continues to agree with all of
its terms. Customer's continued use of the Site or the Services following the posting of changes to the Terms of
Service will mean Customer accepts those changes. If there is any conflict between the Terms of Service and
this Agreement, this Agreement will govern. Customer shall notify Procore of any unauthorized use of Customer's
passwords or account, or any other breach of security that is known or suspected by Customer. Customer and
its Authorized Users shall abide by all applicable local, state, national, and foreign laws and regulations in
connection with their use of the Services. Customer shall be responsible for any breach of this Agreement by its
Authorized Users and agrees to enter into agreements with its Authorized Users that contain terms that impose
restrictions in all material respects no less than those imposed on Customer herein, including, but not limited to,
the provisions regarding the use of the Services and protection of Procore's intellectual property, and that include
additional terms as reasonably requested by Procore.
3.5 Customer Content. Procore will process Customer Content in order to provide and enhance
the Services and Software. The Parties acknowledge and agree that the Customer is at all times the data
controller and Procore is a data processor. Customer represents and warrants that it has all necessary rights in
the Customer Content to grant Procore the right to use, and Customer hereby grants Procore a non-exclusive,
worldwide, royalty -free, transferable, and fully paid license to use, modify, and distribute the Customer Content
as necessary for Procore to provide and enhance the Services. All rights in and to the Customer Content not
expressly granted to Procore in this Agreement are reserved by Customer. Customer represents and warrants
that any Customer Content hosted by Procore as part of the Services will not (a) infringe or violate the rights of
any third party; or (b) be deceptive, defamatory, obscene, or unlawful. Customer acknowledges that any use of
the Services by Customer or Authorized Users contrary to or in violation of the representations and warranties of
Customer in this section constitutes unauthorized and improper use of the Services. Customer shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
The Parties acknowledge that Procore does not and cannot review all Customer Content and will not be
responsible for such content, and that Customer instructs Procore to delete, move, or edit any Customer Content
that Procore determines violates or might violate this Agreement, its Terms of Service, or any applicable law or
regulation, or is otherwise unacceptable. Customer acknowledges and agrees that the Customer Content may
be transferred or stored in a Data Center Region. Customer acknowledges and agrees that the Customer Content
may be shared with third parties as necessary to provide and enhance the Services.
3.6 Customer Data. Procore will process Customer Data as needed to provide the Services. The
Parties acknowledge and agree that the Customer is at all times the data controller and Procore is a data
processor. Customer represents and warrants that Customer shall only provide to Procore the minimum amount
of personally identifiable information, the extent of which is determined and controlled by Customer in its sole
discretion, for each Authorized User, to enable the Authorized User to enjoy the benefit of this Agreement.
Customer represents and warrants that Customer is entitled to transfer relevant Customer Data to Procore so
that Procore may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on
Customer's behalf and Customer shall ensure the same. Customer shall ensure that the relevant third parties,
including data subjects, have been informed of, and have given their consent to, such use, processing, and
transfer as required by all applicable data protection legislation. Customer acknowledges that Procore is reliant
on Customer for direction as to the extent to which Procore is entitled to use and process the Customer Data.
Procore shall process the Customer Data only in accordance with the terms of this Agreement and any written
instructions given by Customer. Customer acknowledges and agrees that the Customer Data may be transferred
or stored in a Data Center Region. Customer acknowledges and agrees that the Customer Data may be shared
with third parties as necessary to provide and enhance the Services. Procore will not be liable for any claim
Procore Technologies, Inc. MSA_2019_V1
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brought by an Authorized User arising from any action or omission by Procore, to the extent that such action or
omission resulted from Customer's instructions.
3.7 Aggregate Content. Customer acknowledges and agrees that Procore may obtain and
aggregate Customer Content and/or anonymized Customer Data with respect to Customer or Authorized Users
("Aggregate Content"), and Procore may utilize the Aggregate Content to analyze, improve, support, and
operate the Services, during and after the term of this Agreement. Customer acknowledges that Aggregate
Content is not Customer Content or Customer Data.
3.8 Customer Acknowledgement. As of the Effective Date, Customer acknowledges and agrees
that Customer's authorized representative has evaluated the features and functionality of the Services in a means
satisfactory to Customer and accepts that the Services have been demonstrably shown to have all of the features
and functionality to Customer's satisfaction. Customer agrees that its purchases hereunder are neither contingent
on the delivery of any future functionality or features, nor dependent on any oral or written comments made by
Procore regarding future functionality or features.
3.9 Non-Procore Applications. Procore and third parties may make available third -party products
or services, including, but not limited to, third -party products available on the Procore App Marketplace
(https://marketplace.procore.com/) ("Non-Procore Applications"). Any use by Customer and any exchange of
data between Customer and the provider of Non-Procore Applications is solely between Customer and the
applicable provider. Procore does not warrant or support Non-Procore Applications or other non-Procore
products or services. If Customer installs or enables a Non-Procore Application for use with the Services,
Customer hereby grants Procore permission to allow the provider of that Non-Procore Application to access
Customer's data and content as required forthe interoperation of that Non-Procore Application with the Services.
Procore is not responsible for any disclosure, modification, or deletion of any Customer Data or Customer Content
resulting from access by or integration with a Non-Procore Application. The Services may contain features
designed to interoperate with Non-Procore Applications. To use such features, Customer may be required to
obtain access to Non-Procore Applications from their providers, and may be required to grant Procore access to
Customer's account(s) on the Non-Procore Applications. Customer agrees to fully comply with any terms and
conditions required by providers of Non-Procore Applications and obtain all consents necessary for Procore to
receive Customer Data and/or Customer Content from such providers. If the provider of a Non-Procore
Application ceases to make the Non-Procore Application available for interoperation with the corresponding
Service features, Procore may cease providing those Service features without providing Customer any refund,
credit, or other compensation. Customer uses Non-Procore Applications at its own risk and Procore is not
responsible for any acts or omissions of providers of Non-Procore Applications. PROCORE HEREBY
DISCLAIMS ALL LIABILITY FORANY HARM OR DAMAGES CAUSED BY NON-PROCORE APPLICATIONS.
3.10 Beta Services. From time to time, Procore may invite Customer and Authorized Users to try or
discuss certain beta services, including pilot, limited release, developer preview, in -development, non -production,
or evaluation services ("Beta Services') at no charge. Customer may accept or decline any such trial. Beta
Services will be clearly designated as such by Procore. Beta Services and discussions about Beta Services are
Procore's Confidential Information, for evaluation purposes and not for production use, are not considered
Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise
stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date
that a version of the Beta Services becomes generally available. Procore may discontinue Beta Services at any
time and may never make them generally available. BETA SERVICES ARE PROVIDED "AS IS" WITHOUT
EXPRESS OR IMPLIED WARRANTY AND WITHOUT INDEMNITY. PROCORE WILL HAVE NO LIABILITY
FOR, AND CUSTOMER HEREBY RELEASES PROCORE FROM ANY LIABILITY OR DAMAGE ARISING OUT
OF OR IN CONNECTION WITH ANY BETA SERVICE.
4. PAYMENT.
4.1 Payment Terms. Customer shall pay Procore all Subscription Fees specified on the Order
Form upon receipt of invoice unless otherwise stated on the Order Form. Overdue payments will be subject to a
late fee of 1.5% for each month or fraction thereof that the payment is overdue, or the highest interest rate
permitted by applicable law, whichever is lower. In addition to any other remedies available to Procore, Procore
Procore Technologies, Inc. MSA_2019_V1
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shall be entitled to discontinue provision of the Services until all overdue amounts due are paid in full. Except as
expressly provided in this Agreement, all payments to Procore are non-refundable and non -cancelable. Customer
shall reimburse Procore for Procore's collection costs incurred in attempting to collect any late payments,
including reasonable attorneys' fees.
4.2 The Subscription Fees stated on the Order Form are exclusive of any federal, state, or other
governmental taxes, duties, fees, excises, or tariffs ("Taxes') now or hereafter imposed on the Services.
Customer shall be responsible for, and if necessary shall reimburse, Procore for all such Taxes on any amounts
payable by Customer hereunder, except for taxes imposed on Procore's net income. If Procore has the legal
obligation to pay or collect Taxes for which Customer is responsible under this Section, Procore will add such
Taxes to the amount invoiced to Customer.
4.3 Procore may audit Customer's Construction Volume (as specified on the Order Form) to ensure
compliance with this Agreement. Procore will give Customer at least ten days' advance notice of any such audit
and will conduct the audit during normal business hours in a manner that does not unreasonably interfere with
Customer's normal operations. Customer agrees to reasonably cooperate with and assist Procore upon receipt
of a notice of audit. Such audit will be at Procore's expense; however, if any such audit discloses any
underpayment by Customer or usage exceeding Customer's subscription as stated on the Order Form(s),
Procore may invoice Customer and Customer shall immediately pay Procore such underpaid amount, together
with interest thereon at the rate specified in section 4.1, and Customer shall also pay Procore for Procore's
expenses associated with such audit.
5. TERM/TERMINATION
5.1 Term. This Agreement commences on the Effective Date and will remain in effect for the initial
term specified on the Order Form ("Initial Term'), unless earlier terminated as provided herein. Upon the
expiration of the Initial Term, this Agreement will automatically be renewed for one year (each such period an
"Automatic Renewal Term") unless one Party gives notice to the other Party at least ten days prior to the end
of the Initial Term. The Subscription Fees must be paid on or before the start of the Automatic Renewal Term in
order to avoid a termination of Services.
5.2 Termination. Either Party may terminate this Agreement upon: (1) any material breach of this
Agreement by the other Party that is not cured within thirty days (or within ten days in case of failure to pay)
following written notice thereof; (2) the other Party becoming insolvent or bankrupt, liquidating or being dissolved,
or ceasing substantially all of its business; or (3) a breach of section 11.3. Upon expiration or termination of this
Agreement or Services authorized in an Order Form, Customer shall immediately discontinue all access and use
of the Services. In the event Customer terminates this Agreement for a material and uncured breach by Procore,
Procore shall, as Customer's sole and exclusive remedy, refund to Customer any prepaid but unused
Subscription Fees calculated on a straight-line prorated basis for the remainder of the then -current Term. In the
event that Procore terminates the Agreement for a material and uncured breach by Customer, Customer shall
continue to pay any fees due to Procore pursuant to section 4.1. In addition to any other remedies available to
Procore, Procore may suspend Customer's or any Authorized Users' access to the Services, at Procore's sole
option, in the event of any violation of this Agreement. Upon termination of this Agreement, Procore shall follow
the data return procedures outlined in Exhibit A.
6. PROPRIETARY RIGHTS.
Procore will retain all worldwide right, title, and interest (including intellectual property rights) in and to the Site
and the Services, the look and feel of the Site, and all copyrights in and to its content. The Site is copyrighted,
trademarked, or otherwise protected, and owned or licensed by Procore. Nothing in this Agreement grants
Customer or any Authorized User an express or implied right to use any Procore intellectual property except as
set forth in section 3.1 above. All proprietary rights in the Services, including the Software and any aggregate
usage data, traffic patterns, and Aggregate Content collected by Procore in connection with use of the Services,
will be the sole and exclusive property of Procore. Procore retains the royalty -free right to use any suggestions,
ideas, feedback, or other recommendations provided by Customer or Authorized Users relating to the Services.
Procore may use Customer's name and/or its logo on Procore's website and in its marketing materials to indicate
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that Customer is a client of Procore. Customer hereby grants Procore the right to contact Customer and
Authorized Users in connection with their use of the Services unless otherwise stated on the Order Form. All
other rights not expressly granted in this Agreement are reserved by Procore.
WARRANTIES AND LIABILITY.
7.1 Limited Warranty. Each Party warrants that it has all necessary authority to enter into and
perform its obligations under this Agreement. Procore represents and warrants that (1) the Services will perform
substantially in accordance with the Documentation under normal circumstances and when used in accordance
with this Agreement and applicable Documentation, and (2) the Services provided hereunder will be performed
in a professional manner in accordance with prevailing industry standards. Provided that Customer notifies
Procore of any breach of the foregoing warranty during the Term, Procore shall, as Customer's sole and
exclusive remedy, provide the support services set forth in Exhibit A to this Agreement. The Services may
contain links to sites on the Internet that are owned and operated by third parties. Customer acknowledges and
agrees that Procore is not responsible for the availability of, or the content located on or through, any such
external site.
7.2 Disclaimer. The Services are provided "as is". Except as specifically provided in
this Agreement, Procore disclaims all other warranties and conditions, express or implied. Procore
expressly disclaims any implied warranties, including the warranties of merchantability, fitness for
a particular purpose, title and non -infringement. Procore does not warrant that the operation of the
Services will be uninterrupted or error -free. Specifically, third -party content and applications are
provided "as -is," exclusive of any warranty. Procore disclaims all liability for any harm or damages
caused by any third -party networking or hosting providers.
7.3 Liability. Procore will not be liable for any special, indirect, exemplary, punitive,
incidental, or consequential damages of any nature (including Customer's loss of construction
business or Customer's failure to use the Services). In any event, aside from its obligations in
section 8, Procore's total maximum liability arising out of or in any way connected to this Agreement
will not exceed the amount paid to Procore by Customer during the twelve-month period
immediately preceding such claim. These limitations will apply whether a claim arises under
contract, tort or any other theory of liability. Some jurisdictions do not allow the exclusion of implied
warranties or limitation of liability for incidental or consequential damages, which means that some
of the above limitations may not apply. In these jurisdictions, Procore's liability will be limited to
the greatest extent permitted by law. The limitations set forth in this section 7 will survive and apply
even if any limited remedy specified in this Agreement is found to have failed of its essential
purpose. The Parties acknowledge and understand that the disclaimers, exclusions, and limitations
of liability set forth herein form an essential basis of the agreement between the Parties, reflect an
allocation of risk between the Parties, and that absentthese disclaimers, exclusions, and limitations
of liability, the terms and conditions of this Agreement would be substantially different.
8. INDEMNITY.
8.1 During the Term, Procore shall defend, indemnify, and hold harmless Customer from any loss
or damages finally awarded or agreed in settlement arising from a third -party action claiming that the Services
infringe any duly issued U.S. patent, copyright, or trademark or misappropriate any trade secret. In addition, if
the use of the Services infringes or is enjoined, or Procore believes it is likely to infringe or be enjoined, Procore
may, at its sole option: (a) procure for Customer the right to continue use of the Services as furnished; (b) modify
the Services to make them non -infringing, provided that they still substantially conform to the applicable
Documentation; or (c) if Procore, after using commercially reasonable efforts, is unable to accomplish the
foregoing remedies, terminate this Agreement and refund to Customer any prepaid but unused Subscription Fees
calculated on a straight-line prorated basis for the remainder of the then -current Term. The intellectual property
indemnity provided herein does not apply to the extent the alleged infringement arises from (x) any use of the
Services not in accordance with this Agreement or as specified in the Documentation, (y) any combination of the
Services and third -party applications (including but not limited to Non-Procore Applications), or (z) any
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unauthorized modification of the Services. This section states Procore's sole and exclusive liability and
Customer's sole remedies for any threatened or actual infringement of proprietary rights.
8.2 During the Term, Customer shall defend, indemnify, and hold harmless Procore and its officers,
directors, employees, agents, successors, and assigns from and against any claims, damages, liabilities,
judgments, settlements, losses, costs, or expenses of any kind, including reasonable attorneys' fees, arising out
of (a) processing of Customer Data within the scope of this Agreement; (b) Customer's misuse of the intellectual
property rights of any third party; and (c) any Customer Content that may violate section 3.5 of this Agreement.
9. CONFIDENTIALITY.
The Parties and Authorized Users shall, during and after the existence of this Agreement, hold in strictest
confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any
third party, any Confidential Information of the other Party. The term "Confidential Information" means all non-
public information that the other Party designates as being confidential, or which, under the circumstances of
disclosure, ought to be reasonably understood to be confidential. Confidential Information includes, but is not
limited to, information concerning business methods, pricing, business plans, new product launches, new product
development, customer and vendor information, internal policies and procedures, other financial information,
technical information and design, and the terms and conditions of this Agreement. Each Party shall not disclose
the other Party's Confidential Information without the prior written consent of such other Party, except to its
employees, contractors, or agents who have a specific need to know such information and are under a written
obligation of confidentiality at least as restrictive as that contained in this section. Information will not be deemed
confidential if it (a) was known to the receiving Party and was acquired through proper methods, priorto its receipt
from the disclosing Party, as evidenced by written records of the receiving Party; (b) is now or later becomes
(through no act orfailure on the part of the receiving Party) generally known through no breach of this Agreement
by the receiving Party; (c) is supplied to the receiving Party by a third party that is free to make that disclosure
without restriction; or (d) is independently developed by the receiving Party without use of or reference to any
Confidential Information provided by the disclosing Party. The restrictions on disclosure imposed by this section
do not apply to information that is required by law ororderof a court, administrative agency, or other governmental
body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the
disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing
Party, atthe disclosing Party's expense, in seeking a protective orderor other appropriate relief. Upon termination
of this Agreement, each Party shall promptly cease all further use of Confidential Information, return to the other
Party all physical materials containing Confidential Information, whether the materials were originally provided
by the disclosing Party or copied or otherwise prepared by the receiving Party, and erase or otherwise destroy
any Confidential Information kept by either Party in electronic or other non-physical form. The Parties
acknowledge that the receiving Party will not be required to return to the disclosing Party or destroy those copies
of Confidential Information residing on the receiving Party's backup or disaster -recovery systems, or which must
be maintained for regulatory or policy purposes; provided that such Party continues to abide by its obligations
underthis section. Procore will be deemed to satisfy its obligations to return Confidential Information if it complies
with its obligations with respect to the export or availability of Customer Content in Exhibit A. Termination or
expiration of this Agreement will not affect each Party's continuing obligations under this section.
10. PRIVACY.
The Procore "Privacy Policy" is located at http://www.procore.com/legal/privacy and may be amended from time
to time. Any updates to the Privacy Policy will be posted to the Site and will be effective immediately upon posting
to the Site. Procore will provide a notification to Customer, via the Site, of updates to the Procore Privacy Policy.
It is Customer's responsibility to review updates to the Privacy Policy to ensure that Customer acknowledges that
Procore processes Customer Data in accordance with the Procore Privacy Policy. If there is any conflict between
the Privacy Policy and this Agreement, this Agreement will govern.
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11. GENERAL.
11.1 Waiver/Amendment. This Agreement may not be modified except by a written instrument
signed by both Parties. Failure by either Party to enforce any provision of this Agreement will not be deemed a
waiver of future enforcement of that or any other provision.
11.2 Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement, in
whole or in part, voluntarily, involuntarily, by operation of law, or otherwise without the other Party's prior written
consent; except that Procore may assign, delegate, or otherwise transfer this Agreement without such consent
to an affiliate or in connection with any merger, consolidation, reorganization, amalgamation, sale of assets, or
any other similar transaction. Any attempt to assign, delegate, or otherwise transfer this Agreement other than in
accordance with this provision will be void.
11.3 Compliance with Laws. Both Parties shall comply with all applicable local, state, national, and
foreign laws, rules, and regulations including all applicable export and import laws and regulations in connection
with their performance, access, and/or use of the Services under this Agreement. Customer represents and
warrants that Customer, and its directors, officers, employees, and agents, have not taken, and during the term
of this Agreement, will not take any action that would constitute a violation of the Foreign Corrupt Practices Act
of 1977, as amended, the UK Bribery Act 2010, or any other anti -bribery or anti -corruption legislation of the
United States, or any other jurisdiction in which Customer or Procore conducts business.
11.4 Data Controller; Export. Customer shall comply with all legal duties applicable to Customer,
including obligations as data controller by virtue of Customer's role in determining Authorized Users. Specifically,
Customer shall provide relevant persons and/or participants with all information Customer is required by law to
provide, and, if necessary, shall obtain the consent of these persons. The Services and derivatives thereof may
be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that
it is not named on any U.S. government denied -party list. Customer shall not permit Authorized Users to access
or use the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea)
or in violation of any U.S. export law or regulation.
11.5 Governing Law; Attorneys' Fees. The rights of the Parties hereunder will be governed by the
laws of the State of California, without regard to its principles of conflicts of law. Any suits brought hereunder
must be brought in the federal or state courts serving Santa Barbara County, California. In the event of any claim,
action, or judicial proceeding arising under this Agreement, the prevailing Party will be entitled to recover
reasonable attorneys' fees and expenses incurred in resolving such claim, action, or judicial proceeding.
11.6 Severability; Notice. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force. Any notice,
consent, or other communication hereunder must be in writing, and must be given personally, or sent via
overnight delivery or via email with confirmation of receipt, to either Party at its respective address set forth in
the Order Form (or such other address as provided by that Party), or by Procore to Customer via notification from
the Services. Notices will be deemed given when delivered.
11.7 Independent Contractors. The relationship of the Parties is that of independent contractors
and nothing contained in this Agreement will be construed to make either Party an agent, partner, joint venturer,
or representative of the other for any purpose. This Agreement is for the sole benefit of the Parties and their
respective permitted successors and assigns, and nothing herein, express or implied, is intended to or will confer
upon any other person or entity any legal or equitable right, benefit, or remedy under or by reason of this
Agreement.
11.8 Force Majeure. Nonperformance by either Party (other than Customer's payment obligations)
will be excused to the extent failure to perform is beyond the reasonable control of the non -performing Party.
11.9 Entire Agreement; Survival. This Agreement, together with any URLs contained herein, any
exhibits, and the Order Form(s), constitutes the entire agreement between the Parties with respect to the subject
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matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the
provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals,
purchase orders, non -disclosure agreements, Customer exhibits to this Agreement, and vendor forms or
registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties,
or obligations of the Parties under this Agreement, regardless of any failure of Procore to object to such terms,
provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the
Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of sections 3.7,
4, and 6 through 11 will survive any termination of this Agreement.
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EXHIBIT A
SUPPORT AND MAINTENANCE
1. Service -Level Agreement
Procore has a service -level objective for the Services of 99.9% availability, 24 hours a day, 7 days a week, 365
days a year. Downtime does not include (i) problems caused by factors outside of Procore's reasonable control,
or (ii) unavailability of the Services during scheduled maintenance.
2. Support.
During the Term, Customer and Authorized Users will have access to technical support via telephone, online
chat, email, or self -paced online tutorials. Support hours will be 24 hours Monday through Thursday, 12:00 a.m.
to 9:00 p.m. Pacific Time ("PT") Friday, and 7:00 a.m. to 6:00 p.m. PT Saturday and Sunday, excluding holidays.
Support does not include training sessions on the features and functionality of the Services (implementation) or
training in computer skills considered prerequisite to an individual's ability to use personal computers, the
Internet/World-Wide Web, Non-Procore Applications, Customer's hardware, and online software.
Upon Procore's receipt of a support request, Procore will use commercially reasonable efforts to answer
questions and provide standard error corrections to known problems.
3. Data Backup and Return.
During the Term, Procore shall make commercially reasonable efforts to protect the security of Customer
Content/Customer Data, as set forth below, and shall complete daily data backups that include Customer's data
in an archive format that is kept physically separate from the Procore database and web server hardware. The
Services do not replace the need for Customer to maintain regular data backups or redundant data archives.
Procore contracts with a third -party data center provider to provide technology services such as network
connectivity to the Internet for the servers running the Services. Personnel access to the data center used by
Procore for these Services is restricted, and all entrances and common areas are monitored 24x7 via closed-
circuit cameras. Public access to the data center is forbidden. Fire -suppression systems are located in the data
center, and power systems in the data center are designed to run uninterrupted even in the event of a total power
outage. All servers are supplied with Uninterruptible Power Supply ("UPS") power sources that will continue to
run if utility power fails. The UPS power subsystem is fully redundant, with instantaneous failover in case the
primary UPS fails. In the event of an extended power outage, Procore relies on onsite diesel generators.
Generators are regularly tested to ensure functionality in the event of an emergency.
For thirty days following the termination of this Agreement, and provided that there has been no material breach
of this Agreement by Customer, Procore will make Customer Content/Customer Data available to Customer, at
Customer's request, via read-only access to the Service, solely for purpose of allowing Customer to retrieve
Customer Content/Customer Data. Customer allows Procore after such thirty -day period to delete all Customer
Content/Customer Data.
4. Maintenance
4.1 Unplanned Outages. If a system failure occurs that creates an outage of the Services, Procore
will utilize commercially reasonable means to end the outage as soon as possible. Outages due to the Internet,
hosting providers, and/or Customer or Authorized User systems are outside Procore's control and, in such event,
Procore may assist the Customer or Authorized User in the diagnosis but may not be able to resolve the problem.
4.2 Preventative Maintenance. From time to time, Procore or its hosting providers will perform
preventative maintenance, such as updating servers and routers with security patches, and software upgrades.
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Procore will provide notice prior to any interruption in the Services for scheduled maintenance and will keep any
resulting downtime reasonable. Procore will use reasonable efforts to perform such maintenance during non -
peak hours.
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