These Terms of Service ("Agreement") are made available by HeadLight Technologies, Inc., a Washington corporation ("HeadLight"), and govern the access to and use of the Service by any individual or entity that accesses or uses the Service ("Customer"). By accessing or using the Service, Customer agrees to be bound by this Agreement.
1. DEFINITIONS
"Aggregated Data" means de-identified data that HeadLight combines with information received from other customers, users, or data sources for the purposes of developing, training, maintaining, and improving the Service and HeadLight's products.
"Authorized Users" means the employees and/or contractors designated by Customer who are authorized to access and use the Service pursuant to this Agreement, up to the maximum number set forth in the applicable Order Form.
"Confidential Information" means any oral, written, graphic, or machine-readable information of either party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure, including without limitation business plans, financial and technical information, trade secrets, inventions, improvements, know-how, and software programs.
"De-identified Data" means Project Data or other data relating to Customer's use of the Service that has been de-identified and/or anonymized by HeadLight in accordance with applicable law such that it no longer identifies Customer, any Authorized User, or any individual.
"Documentation" means the documentation produced and supplied by HeadLight to Customer and/or made available on the Service specifying how the Service should be used.
"Downtime" means periods when the Service and/or the Project Data may be unavailable and/or inaccessible as a result of maintenance, changes, or outages, both planned and unplanned.
"Fees" means the subscription fees and any other charges set forth in the Order Form.
"HeadLight Reseller" means a third party authorized by HeadLight to resell or administer access to the Service and to enter into agreements with Customers on HeadLight's behalf.
"Intellectual Property Rights" means all rights of the following types: (a) rights associated with works of authorship, including copyrights and moral rights; (b) trademark and trade name rights; (c) trade secret rights; (d) patents and industrial property rights; and (e) all registrations, renewals, and applications for any of the foregoing.
"Order Form" or "Proposal" means the written order document executed by both Customer and HeadLight (or a HeadLight Reseller), which sets forth the specific Fees, subscription term, number of Authorized Users, and any other agreed-upon terms applicable to Customer's subscription.
"Permitted Purpose" means the use of the Service by Authorized Users in connection with Customer's Projects.
"Privacy Policy" means HeadLight's then-current privacy policy governing HeadLight's collection, use, and disclosure of personal data, as updated from time to time.
"Project Data" means all data, reports, images, notes, drawings, sketches, and other content regarding a Project that is uploaded to, stored on, processed using, transmitted through, or otherwise accessed using the Service by or on behalf of Customer or any Authorized User.
"Projects" means Customer's construction, environmental, maintenance, infrastructure, and similar projects managed through the Service.
"Security Incident" means any confirmed unauthorized access to, or accidental or unlawful destruction, loss, alteration, or disclosure of, Project Data stored or processed by HeadLight in connection with the Service.
"Service" means HeadLight's proprietary software as a service platform (including any web-based, mobile, and desktop access modalities, including applications distributed through the Apple App Store or other authorized platform) that is owned and operated by HeadLight and/or its licensors.
"Service Level Agreement" or "SLA" means the service level commitments described in Exhibit A, which is incorporated into this Agreement by reference.
"Term" means the subscription period set forth in the applicable Order Form, including any renewals.
"Upgrades" means new versions of, and updates to, the Service, whether for the purpose of fixing an error, bug, or other issue or for enhancing the functionality of the Service.
2. SUBSCRIPTION; AUTHORIZED USERS
2.1 Subscription. Subject to the terms and conditions of this Agreement and Customer's timely payment of all Fees, HeadLight grants Customer a limited, non-exclusive, non-transferable right to access and use the Service during the Term solely for the Permitted Purpose and solely by Authorized Users up to the number specified in the Order Form.
2.2 Authorized Users. Customer shall ensure that the Service is used only by Authorized Users and that each Authorized User complies with the provisions of this Agreement applicable to Authorized Users’ use of the Service, including without limitation Sections 3 (License Restrictions) and 7 (Acceptable Use). Customer is responsible for all acts and omissions of its Authorized Users in connection with the Service, and any act or omission of an Authorized User that would constitute a breach of this Agreement if committed by Customer shall be deemed a breach of this Agreement by Customer. Customer shall promptly notify HeadLight of any unauthorized access to or use of the Service.
2.3 HeadLight Reseller. Where Customer has entered into an agreement with a HeadLight Reseller, the HeadLight Reseller may administer Customer's account and may, as part of such administration, monitor and access Project Data to the extent permitted under such agreement. HeadLight shall not be responsible for the acts or omissions of any HeadLight Reseller.
2.4 User Accounts; Credentials. Each Authorized User must register for an individual user account using accurate and complete information. Customer shall ensure that each Authorized User maintains the confidentiality of such Authorized User’s login credentials and does not share accounts or credentials with any other person. Customer is responsible for all activity occurring under its Authorized Users’ accounts. HeadLight may suspend or terminate an individual Authorized User’s access to the Service immediately if such Authorized User breaches any provision of this Agreement applicable to Authorized Users or if such suspension or termination is reasonably necessary to protect the security or integrity of the Service, provided that HeadLight will promptly notify Customer of any such suspension or termination.
3. LICENSE RESTRICTIONS
Customer agrees not to: (a) copy, modify, create derivative works of, disassemble, decompile, or reverse engineer the Service; (b) rent, lease, sublicense, assign, or transfer any rights to use the Service to any third party without HeadLight's prior written consent; (c) use the Service for any purpose other than the Permitted Purpose or in violation of any applicable law; (d) interfere with or disrupt the integrity or performance of the Service; or (e) permit Authorized Users to engage in any prohibited use listed in Section 7 below.
4. FEES AND PAYMENT
4.1 Fees. Customer shall pay HeadLight (or the applicable HeadLight Reseller) the Fees set forth in the Order Form in accordance with the payment terms stated therein.
4.2 Invoicing and Payment. Unless otherwise specified in the Order Form, invoices are due and payable within thirty (30) days of the invoice date. All Fees are non-refundable except as expressly provided herein.
4.3 Late Payment. If Customer fails to pay any amounts due hereunder by the applicable due date, HeadLight reserves the right to: (a) charge interest on the overdue amount at the lesser of 1.5% per month or the maximum rate permitted by applicable law; and (b) suspend Customer's access to the Service upon written notice.
4.4 Taxes. All Fees are exclusive of applicable taxes. Customer shall be responsible for all taxes, levies, or duties imposed by taxing authorities based on this Agreement, excluding taxes based solely on HeadLight's net income.
4.5 Fee Adjustments. HeadLight may adjust Fees at renewal by providing Customer with at least thirty (30) days' written notice prior to the end of the then-current Term.
5. PROJECT DATA LICENSE AND USE
5.1 Customer Responsibility. Customer shall be solely responsible for the accuracy, quality, integrity, and legality of Project Data. HeadLight does not alter or modify Project Data, other than as necessary to store, transmit, or provide access to such Project Data.
5.2 License to Project Data. Customer grants to HeadLight a non-exclusive, royalty-free, fully paid-up, worldwide, irrevocable, perpetual, transferable license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit, and distribute Project Data to: (i) provide, operate, maintain, and improve the Service; (ii) comply with applicable laws; and (iii) enforce HeadLight's terms and policies.
5.3 AI and Service Improvement. Customer acknowledges and agrees that the Service includes ongoing improvement. HeadLight may use De-identified Data to develop, train, maintain, and improve the Service, other HeadLight products and services, and HeadLight's artificial intelligence models. HeadLight will not use identified Project Data to train AI models without Customer's prior written consent.
5.4 De-identified and Aggregated Data. HeadLight may, unless prohibited by applicable law, de-identify and/or anonymize Project Data and any other data relating to Customer's use of the Service to create De-identified Data and may aggregate such De-identified Data into Aggregated Data. All De-identified Data and Aggregated Data shall be owned solely and exclusively by HeadLight. HeadLight may, during and after the Term, use, reproduce, disclose, distribute, sell, and otherwise commercialize such De-identified Data and Aggregated Data.
6. SERVICE AVAILABILITY AND SUPPORT
6.1 Service Level Agreement. HeadLight shall provide the Service in accordance with the Service Level Agreement set forth in Exhibit A. Customer's remedies for any failure to meet the SLA commitments are set forth in Exhibit A.
6.2 Hosting. HeadLight shall use commercially reasonable measures to operate the hosting environment for the Project Data, including maintaining reasonable network and physical security according to generally accepted industry standards.
6.3 Support and Maintenance. HeadLight may, but is not obligated to, provide maintenance and support services as further described in the Order Form or any applicable support addendum. Upgrades shall be subject to the terms and conditions of this Agreement.
6.4 Mobile and App Access. The Service is accessible via web browser and HeadLight-approved applications, including applications distributed through the Apple App Store. Customer acknowledges that additional terms from the applicable app store may apply to Authorized Users' use of such applications.
7. ACCEPTABLE USE
Customer and its Authorized Users agree not to use the Service to: (a) upload, store, or transmit any material that contains viruses, Trojan horses, worms, time bombs, or any other harmful or deleterious programs; (b) engage in any scraping, data mining, or automated data collection from the Service without HeadLight's prior written consent; (c) use the Service to gather competitive intelligence about HeadLight or to build a competing product or service; (d) impersonate any person or entity or falsely represent a user's affiliation with any person or entity; (e) access or use the Service for any benchmarking or performance testing purpose without HeadLight's prior written consent; or (f) engage in any other use that violates this Agreement, any applicable law, or any third-party rights.
HeadLight reserves the right to suspend or terminate Customer's access to the Service immediately upon discovery of any material violation of this Section.
8. PRIVACY AND DATA SECURITY
8.1 Privacy Policy. HeadLight's collection, use, and disclosure of personal data in connection with the Service is governed by HeadLight's Privacy Policy, available at https://www.headlight.com/privacy-policy/, which is incorporated into this Agreement by reference. HeadLight may update the Privacy Policy from time to time and will provide notice of material changes consistent with applicable law.
8.2 Data Security. HeadLight implements and maintains reasonable and appropriate technical and organizational measures designed to protect Project Data against unauthorized or unlawful processing, and against accidental loss, destruction, or damage.
8.3 Security Incident Notification. In the event HeadLight confirms a Security Incident affecting Project Data, HeadLight will: (a) notify Customer in writing within seventy-two (72) hours after confirmation of the Security Incident; (b) provide a description of the nature of the Security Incident, the categories and approximate number of individuals and data records concerned, likely consequences, and measures taken or proposed by HeadLight; and (c) cooperate with Customer as reasonably necessary to mitigate the effects of the Security Incident. Notification under this Section shall not constitute an acknowledgment or admission by HeadLight of any fault or liability.
9. CONFIDENTIALITY
9.1 Scope. Each party acknowledges that it may be exposed to or acquire Confidential Information of the other party, as defined in Section 1 of this Agreement.
9.2 Nondisclosure. Each party shall: (a) hold the other party's Confidential Information in confidence using at least the same degree of care it uses for its own confidential information (but no less than reasonable care); (b) not disclose such Confidential Information to any third party except as necessary to perform its obligations or exercise its rights under this Agreement; and (c) use such Confidential Information solely for the purposes of this Agreement.
9.3 Exceptions. Confidentiality obligations shall not apply to information that: (a) is or becomes publicly available through no breach of this Agreement; (b) is rightfully received from a third party without restriction; (c) was known to the receiving party prior to disclosure; (d) is independently developed by the receiving party without use of the Confidential Information; or (e) is required to be disclosed by law or court order, provided the receiving party provides reasonable prior notice to the disclosing party.
9.4 Return of Confidential Information. Upon termination of this Agreement, each party shall promptly return or destroy the other party's Confidential Information. Confidentiality obligations shall survive termination for five (5) years, except for trade secrets which shall be protected indefinitely.
10. REPRESENTATIONS AND WARRANTIES
10.1 Mutual Representations. Each party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement; (b) the execution and performance of this Agreement do not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable in accordance with its terms.
10.2 Customer Representations. Customer represents and warrants that in compiling, collecting, uploading, and transmitting Project Data, Customer has not and will not: (a) infringe any Intellectual Property Rights of any third party; or (b) violate any applicable law, statute, ordinance, or regulation.
10.3 Disclaimer. THE SERVICE AND THE DOCUMENTATION ARE PROVIDED "AS IS" AND WITH ALL FAULTS, EXCEPT AS EXPRESSLY SET FORTH IN THE SLA. HEADLIGHT EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
11. INDEMNIFICATION
11.1 Customer Indemnity. Customer shall indemnify, defend, and hold harmless HeadLight and its officers, directors, employees, and agents from and against any and all losses, expenses, costs (including reasonable attorneys' fees), liabilities, and damages arising out of or relating to: (a) the negligence or willful misconduct of Customer or its Authorized Users; (b) a breach by Customer or any Authorized User of this Agreement; (c) the unauthorized use or misuse of the Service; or (d) the Project Data.
11.2 HeadLight Indemnity. HeadLight shall indemnify, defend, and hold harmless Customer from and against any third-party claim that the Service, as provided by HeadLight and used in accordance with this Agreement, infringes any United States Intellectual Property Right, provided that Customer: (a) promptly notifies HeadLight of the claim; (b) gives HeadLight sole control over the defense and settlement; and (c) cooperates reasonably with HeadLight.
11.3 HeadLight Rights. HeadLight shall have the right, but not the obligation, to assume sole responsibility and control over the defense of any claim for which Customer owes indemnity hereunder.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOSS OF DATA, OR EQUIPMENT DOWNTIME, EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE THEORY OF LIABILITY. IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON HEADLIGHT UNDER THIS AGREEMENT FOR ANY REASON WHATSOEVER, HEADLIGHT'S AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO HEADLIGHT (OR TO A HEADLIGHT RESELLER) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THEM AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
13. TERM AND TERMINATION
13.1 Term. This Agreement shall commence on the date Customer first accesses or uses the Service, or the date of the applicable Order Form, whichever is earlier, and shall continue for the initial subscription period set forth in the Order Form, unless earlier terminated pursuant to this Section.
13.2 Renewal. Unless otherwise specified in the Order Form, this Agreement shall automatically renew for successive one-year periods at HeadLight's then-current rates, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.
13.3 Termination by HeadLight. HeadLight may terminate this Agreement: (a) for any reason or no reason, by providing thirty (30) days' written notice to Customer; (b) immediately upon written notice if Customer breaches any provision of Sections 3, 5, or 9 and fails to cure such breach within one (1) business day of notice; (c) upon thirty (30) days' written notice if Customer materially breaches any other term of this Agreement and fails to cure such breach within such period; or (d) immediately upon any failure by Customer to remit payments due hereunder when due, whether to HeadLight or a HeadLight Reseller.
13.4 Termination by Customer. Customer may terminate this Agreement by providing written notice of non-renewal no later than thirty (30) days prior to the end of the then-current Term. Unless otherwise agreed in writing, early termination during a subscription Term does not entitle Customer to a refund of any prepaid Fees.
13.5 Effect of Termination. Upon the expiration or termination of this Agreement: (a) all rights granted to Customer hereunder shall immediately cease; (b) Customer shall have no further right to access or use the Service; and (c) neither party is released from any obligation that matured prior to the effective date of termination or expiration.
13.6 Data Return and Deletion. Upon termination or expiration of this Agreement, and upon Customer's written request within thirty (30) days of the effective date of termination or expiration, HeadLight will, at Customer's election, return or delete Project Data in HeadLight's possession in a commercially reasonable format, subject to HeadLight's standard data retention and backup practices and any legal retention obligations. After such thirty (30) day period, HeadLight shall have no obligation to retain Project Data. HeadLight's rights in De-identified Data and Aggregated Data shall survive termination or expiration.
13.7 Survival. The following provisions shall survive the termination or expiration of this Agreement: Sections 1, 5.2–5.4, 9, 10, 11, 12, 13.5–13.7, 14, 15, and 16.
14. INTELLECTUAL PROPERTY
14.1 Ownership. The Service is licensed and not sold. All right, title, and interest in the Service, the Documentation, and any HeadLight Confidential Information is and shall remain the sole and exclusive property of HeadLight. No rights are granted to Customer other than as expressly set forth in this Agreement.
14.2 Feedback. If Customer provides HeadLight with any suggestions, feedback, or recommendations regarding the Service, HeadLight shall be free to use, disclose, reproduce, license, and otherwise exploit such feedback without any obligation or restriction.
14.3 Notification. Customer shall promptly inform HeadLight of any misuse, unauthorized use, infringement, or misappropriation of the Service, the Documentation, or any Confidential Information.
15. EXPORT RESTRICTIONS; GOVERNMENTAL RIGHTS
15.1 Export Restrictions. Customer acknowledges that the Service may be subject to governmental export, import, and/or use controls. Customer shall not export, re-export, import, use, or transfer the Service except in compliance with applicable laws and regulations.
15.2 Government Rights. The Service and the Documentation constitute "Commercial Items" as defined at 48 C.F.R. § 2.101. To the extent Customer is a U.S. governmental entity, the Service is provided with only those rights granted to all other end users pursuant to this Agreement.
16. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement (other than payment obligations) to the extent such delay or failure is caused by circumstances beyond such party's reasonable control, including without limitation acts of God, fire, flood, earthquake, hurricane, pandemic or epidemic, acts of war, terrorism, civil unrest, labor disputes, actions of governmental authorities, or failure of telecommunications or power infrastructure ("Force Majeure Event"). The party affected shall: (a) promptly notify the other party; (b) use commercially reasonable efforts to mitigate the effects; and (c) resume performance as soon as reasonably practicable. If a Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate this Agreement upon written notice without liability, except that HeadLight shall use commercially reasonable efforts to return Customer's Project Data in a reasonable format upon such termination.
17. MISCELLANEOUS
17.1 Entire Agreement. This Agreement, together with all Order Forms, exhibits, and HeadLight's Privacy Policy, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, negotiations, and understandings relating thereto.
17.2 Amendment. This Agreement may be amended only by a written instrument signed by authorized representatives of both parties.
17.3 Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, except that HeadLight may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets.
17.4 Relationship of Parties. The parties are independent contractors. Nothing herein shall be deemed to create an agency, joint venture, or partnership relationship between the parties.
17.5 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed under the laws of the State of Washington, USA (excluding its conflicts of laws principles). Any dispute arising under this Agreement shall first be submitted to binding arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, with proceedings conducted in King County, Washington. Notwithstanding the foregoing, governmental entity customers that are legally prohibited from agreeing to arbitration shall resolve disputes in a state or federal court located in King County, Washington. Either party may seek emergency equitable relief in a court of competent jurisdiction without first resorting to arbitration.
17.6 Notices. All notices or other communications required or permitted hereunder shall be in writing and sent to HeadLight at legal@headlight.com (or such other address as HeadLight specifies in writing) or to Customer at the address on record with HeadLight or the applicable HeadLight Reseller.
17.7 Remedies. Each party acknowledges that a breach of certain obligations under this Agreement may result in immediate, irreparable, and continuing damage for which there may be no adequate remedy at law, and that the non-breaching party shall therefore be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law or in equity.
17.8 No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, the parties do not intend to confer any right or remedy on any third party.
17.9 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
17.10 Attorneys' Fees. If any arbitration, action, suit, or proceeding is instituted to interpret, enforce, or rescind this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs and expenses incurred in connection with such proceeding.
17.11 Waiver. The failure of either party to insist upon strict performance of any provision of this Agreement shall not constitute a waiver of that provision or any other right hereunder.
17.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed valid and binding to the same extent as original signatures.
EXHIBIT A
Availability and Service Level Rider
Notwithstanding anything to the contrary in the Agreement, HeadLight agrees that the Platform will be available (“Uptime”) to Customer for not less than 99.5% for the 365-day period ending on the contract anniversary of each year. HeadLight is designed to allow collection of field data whether or not the Customer device is connected to the Platform, and accordingly HeadLight is useable irrespective of transient periods of non-availability of the Platform. Therefore, the following shall not be subtracted from availability for the purpose of calculating Uptime:
- Periods of non-availability for scheduled maintenance defined as non-availability with not less than seven days' advance notice provided to Customer, as long as such scheduled maintenance does not exceed 3 hours per rolling 90-day period; or
- Periods when Project Data can be collected through Installed Applications, irrespective of whether the Platform is unavailable; or
- Failure of data to transit the internet, other than interruptions in transit between the Platform and the internet.
Uptime will be calculated annually, not later than 30 days following the end of each 365-day contract period. If Uptime is less than 99.5% but equal to or greater than 99.0% then Customer will receive a credit equal to 5% against the next due invoice to HeadLight. If Uptime is less than 99.0% then Customer will receive a credit equal to 10% against the next due invoice to HeadLight. Such credit shall be Customer’s sole and exclusive remedy for failure to achieve the Uptime standards set forth herein.