These Data Capture Services Terms and Conditions (these “DCS Terms”) are between OIQ LLC (“OIQ”) and the Customer identified in the Sales Orders (“Customer”) that reference these DCS Terms (each, an “Order”). These DCS Terms will govern the use and provision of any Data Capture Services purchased by Customer as described in any Order. OIQ and Customer may be collectively referred to herein as the “Parties” or individually as a “Party.”
1. Provision of the Services. The services to be provided under these DCS Terms are for the Project Site(s) identified in the Order(s) which reference these DCS Terms. Additional Project Sites may be added by execution by the Parties of additional Orders.
1.1. Services. OIQ will perform data capture services (collectively, “Data Capture Services”), which include collection of visual data at specified Project Sites for use in conjunction with technology and SaaS services made available to Customer by OIQ or its affiliates pursuant to the SaaS Terms and Conditions between OnSiteIQ Inc. and Customer. OIQ shall perform the Data Capture Services in accordance with these DCS Terms and the applicable Order(s), and any laws, codes, ordinances, rules, or regulations applicable to OIQ’s provision of the Data Capture Services generally.
1.2. Time of Performance. Data Capture Services will be performed at the times specified in the Order(s) or otherwise agreed in writing by the Parties.
1.3. Project Sites. Unless otherwise set forth in an Order, Data Capture Services will be performed at the physical structures and construction sites identified in an Order or otherwise specified by Customer to OIQ or its affiliates from time to time (each, a “Project Site”).
2. Scope of Data Capture Services. The Data Capture Services to be provided under these DCS Terms will be within the scope set forth in this Section 2.
2.1. Scope of Data Capture Services. OIQ will perform Data Capture Services in all accessible rooms/units, bathrooms, hallways, MEP areas, roof tops, cellars, and external Project Site conditions (non-areal around base of the asset closest to grade)
2.2. Exclusions. OIQ requires all areas to be accessible and available for safe performance of the Data Capture Services. OIQ will not:
- 2.2.1. Collect on areas that require fall protection equipment
- 2.2.2. Collect on scaffolding
- 2.2.3. Collect on stairwells (non-landing areas)
- 2.2.4. Enter no access zones or areas that have been marked off by the general contractor
- 2.2.5. Enter into areas without clear, established walking paths void of material obstruction
- 2.2.6. Add lighting to the job site outside of a hand-held industrial grade flashlight. Customer agrees that each Project Site shall be compliant with conditions in OSHA 1926.56(a) listed in Table D-3
- 2.2.7. Collect on the inside of elevator shafts
- 2.3.1. Schedule Deviations. OIQ will use commercially reasonable efforts to preserve the consistency of Data Capture Services according to a predetermined scheduling cadence. However, on occasion, there may be +-2 days variability from such set cadence. This can be for a variety of reasons including but not limited to sickness, transportation delays/failures, unforeseen emergencies and weather conditions.
- 2.3.2. Missed Data Capture Services. If a schedule deviation or data delivery results in a gap of service with respect to the agreed terms set forth in the Order, upon request from Customer, OIQ will issue a service credit towards the same Project Site. Such service credit will be in the form of one (1) completion of Data Capture Services for the same Project Site at the reasonable direction of Customer and at no additional cost to Customer, consistent with these DCS Terms. If access is denied to the Project Site at the agreed upon time for the Data Capture Services to be performed, such service credit will be considered issued and completed.
2.4. Data Capture Services Scheduling.
- 2.4.1. Coordination. OIQ determines the dates for Data Capture Services in coordination with Customer at the initiation of the project. Customer cannot dictate exact dates and times for Data Capture Services. OIQ will accept reasonable requests but availability is not guaranteed.
- 2.4.2. Frequency. OIQ will deliver Data Capture Services as per the frequency set forth in the Order. Weekly captures are 7 days apart. Bi weekly are 14 days apart. Monthly are 30 days apart. While OIQ aims to be as consistent as possible on this cadence, the performance of Data Capture Services is always subject to 2.3.1 (Schedule Deviations) above.
- 2.4.3. Changing Frequency of Data Capture Services. Customer cannot decrease the frequency of the Data Capture Services set forth in the Order. Customer can increase the frequency of the Data Capture Services by agreeing to a separate Order with OIQ.
- 2.4.4. Customer Rescheduling the Date of Data Capture Services. OIQ may accept reasonable requests from Customer to complete Data Capture Services on a specific date outside the scope of the Order, provided that OIQ is provided with at least two (2) weeks’ prior written notice. Availability for the requested rescheduled date is not guaranteed.
- 2.4.5. Changing the Data Capture Services Scope. OIQ will perform the Data Capture Services with respect to the entire site conditions as described in Section 2.1 (Scope of Data Capture Services). Unless otherwise noted in the Order, OIQ will not accept requests for alternate scopes that “customize” the service offering, including collecting only certain floors or areas of the site while excluding others. Such customization impacts the quality of derivative products and OIQ’s ability to provide future value to Customer.
- 2.4.6. Implementation. Data Capture Services will start within four (4) weeks after Customer’s completion of all of its obligations and responsibilities set forth in Section 4 (Customer Responsibilities) below.
2.5. Image Quality. OIQ aims to provide the best image quality that 360 degree video can provide within a construction environment. There are continuous improvements to hardware, software, and in-field data capture techniques that may be released and made available to Customer during the term of these DCS Terms.
- 2.5.1. Image Quality. OIQ aims to provide a minimum standard of image quality of 6K (5760 x 2880), 2 frames per second.
- 2.5.2. Blur. To provide complete and comprehensive coverage, OIQ uses a video based capture system that can lead to blurry images. Blur is something that causes less clarity or distinction through reduction and distortion of detail. Up to 30% of the images OIQ makes available to Customer may have some element of blur.
- 2.5.3. Lighting. Weather patterns such as extreme cloud coverage or rain impacts the quality of the light entering the Project Site. The amount of light influences the quality of the image in some cases. In accordance with Section 2.2 (Exclusions) above, OIQ will add light to the environment through an industrial grade flashlight + diffuser where necessary.
2.6. Site Personnel Check-In. If requested, OIQ’s data collectors will check in with necessary personnel and follow agreed upon site procedures and protocol. If site contact requests a personal check in for every visit, they must make themselves reasonably available.
2.7. Escort Walks. If Customer or a general contractor requires an escort to walk with OIQ’s data collector, they must make themselves reasonably available as to not restrict site access required pursuant to Section 4.1 (Project Site Access) below, and not direct the data collector as to restrict the scope described in Section 2.1 (Scope of Data Capture Services) above.
2.8. Data Delivery and Availability. Under the SaaS Terms and Conditions, OnSiteIQ, Inc processes and analyzes the images captured at the Project Site(s).
- 2.8.1 Data delivery (i.e., publishing project data from the performance of Data Capture Services to the applicable web application) occurs within forty-eight (48) hours of the completion of the Data Capture Services.
3.1. Services. Compensation for the Data Capture Services is as set forth in the Order (the “DCS Fees”). Customer will make payment to OIQ or its affiliate, as set forth in the Order and pursuant to these DCS Terms.
3.2. Payment Terms. Unless as otherwise specified in an Order:
- 3.2.1. OIQ or its affiliate will invoice Customer in advance in accordance with the relevant Order; and
- 3.2.2. invoiced charges are due in accordance with the invoice terms in the applicable Order.
3.3. Overdue Charges. If any invoiced amount is not paid by the due date, then without limiting OIQ’s rights or remedies, OIQ may subject such overdue invoiced amount to the accrual of interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any DCS Fees are thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts for which OIQ or its affiliate has been authorized to charge Customer’s credit card), OIQ or its affiliate may, without limiting its other rights and remedies, accelerate Customer’s unpaid DCS Fee obligations so that all such obligations become immediately due and payable.
3.4. Taxes. The DCS Fees are exclusive of all taxes, duties, tariffs, assessments, export and import fees, or other similar charges arising in connection with the Data Capture Services or Customer’s payment of the DCS Fees, which are Customer’s responsibility. Customer shall make all payments of the DCS Fees to OIQ or its affiliate without reduction for any such taxes.
3.5. Service Credit. If OIQ cannot fulfill the scope of services as set forth herein and the applicable Order, OIQ, at the request of Customer, will issue a service credit towards the same Project Site. Such service credit will be in the form of one (1) completion of Data Capture Services for the same Project Site at the reasonable direction of Customer and at no additional cost to Customer, consistent with these DCS Terms. If access is denied to the Project Site at the agreed upon time for the Data Capture Services to be performed, such service credit will be considered issued and completed.
4. Customer Responsibilities.
4.1. Project Site Access. Customer will provide OIQ with physical access to each Project Site at the frequency specified in the applicable Order or otherwise agreed in writing by the Parties. Notwithstanding anything herein to the contrary, in the event OIQ is unable to access a Project Site due to government mandated work restrictions (“Government Ordered Work Stoppage”), until the Government Ordered Work Stoppage is lifted, the Parties agree to suspend OIQ’s obligations to provide the Data Capture Services and extend the term of the applicable Order(s) by the number of days the Government Ordered Work Stoppage is in effect.
4.2. Additional Customer Responsibilities. In order to set up and maintain Customer’s projects, OIQ must receive, and Customer agrees to provide:
- 4.2.1. Up to date and accurate floor plans throughout the construction phase, including new versions that are released
- 4.2.2. Up to date site address and a primary site point of contact
- 4.2.3. Coordinated support with the General Contractor for site access
- 4.2.4. Access to locked rooms through receipt of physical or digital key
- 4.2.5. Access to PMIS system to retrieve project information
Delays in receipt of any of the foregoing may cause service performance issues and delays in Data Capture Services
5. Term and Termination.
5.1. Term. These DCS Terms commence on the effective date of the Order and, unless terminated earlier in accordance with these DCS Terms, continue for the term set forth in such Order.
5.2. Termination. A Party may terminate these DCS Terms for cause if: (a) a material breach remains uncured after thirty (30) days written notice to the other Party; or (b) the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3. Refund or Payment upon Termination. If these DCS Terms and the applicable Order(s) are terminated by Customer in accordance with Section 5.2 (Termination) above, OIQ or its affiliate will refund Customer any prepaid DCS Fees covering the remainder of the term of all Orders after the effective date of termination. If these DCS Terms are terminated by OIQ in accordance with Section 5.2 (Termination) above, Customer will, within ten (10) days after such termination, pay OIQ or its affiliate any unpaid DCS Fees covering the remainder of the term of all Orders. In no event will termination relieve Customer of its obligation to pay any DCS Fees payable to OIQ or its affiliate for the period prior to the effective date of termination.
6. Limited Warranties; Disclaimers. OIQ warrants that the Data Capture Services will be performed in a professional and workmanlike manner consistent with industry standards and practices. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, OIQ MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
7. Indemnification. OIQ shall indemnify and hold harmless Customer from and against third-party claims, damages, losses, and expenses (collectively “Claims”), arising out of or resulting from performance of the Data Capture Services, provided that such Claims are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, but only to the extent caused by the negligent acts or omissions of OIQ, or anyone engaged by OIQ to perform such Data Capture Services.
8. Limitations of Liability.
8.1. WAIVER OF INDIRECT DAMAGES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THESE DCS TERMS OR THE DATA CAPTURE SERVICES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. DIRECT DAMAGES. EXCEPT FOR LIABILITY ARISING FROM OIQ’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6, OIQ’S AND ITS AFFILIATES’ AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THESE DCS TERMS OR THE DATA CAPTURE SERVICES SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER FOR THE DATA CAPTURE SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. THE LIMITATIONS OF LIABILTY SET FORTH IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE DCS TERMS.
9.1. Governing Law and Jurisdiction. These DCS Terms shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any legal action or proceeding arising under these DCS Terms shall be brought exclusively in the federal or state courts located in New York, New York and the Parties hereby consent to personal jurisdiction and venue therein.
9.2. Relationships of the Parties. The Parties are independent contractors and these DCS Terms shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
9.3. Force Majeure. Except for payment obligations, neither Party shall be deemed to have breached any provision of these DCS Terms as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, third party network failures, acts of civil or military authorities, civil disturbances, pandemic, wars, terrorism, energy crises, fires, interruptions in third party telecommunications or Internet equipment or services, other catastrophes, or any other occurrences which are beyond such Party’s control and could not have been reasonably anticipated by such Party.
9.4. Assignment. Neither Party shall assign or otherwise transfer these DCS Terms to a third party without obtaining the prior written consent of the other Party, and any attempted assignment or transfer in violation of the foregoing shall be null and void; provided, however, that: (a) Customer may assign these DCS Terms in their entirety to any affiliate of Customer or, if the Order(s) which these DCS Terms incorporate are for only one (1) Project Site, in connection with a sale of all or substantially all of its direct or indirect interest in such Project Site, in each case, without the consent of OIQ; and (b) OIQ may assign these DCS Terms in connection with merger or a sale of all or substantially all of its assets without the consent of Customer, provided that notice of any such assignment is provided to the other Party within ten (10) days following such assignment. Notwithstanding the foregoing, Customer acknowledges and agrees that OIQ may subcontract the performance of the Data Capture Services to one or more subcontractors without Customer’s consent, provided that OIQ remains responsible for the acts and omissions of each such subcontractor in connection with such subcontractor’s performance of the Data Capture Services. These DCS Terms shall be binding on all successors and permitted assignees of the Parties.
9.5. Severability. If any provision of these DCS Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these DCS Terms shall remain enforceable and the invalid or unenforceable provision shall be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.6. Waiver. The failure of either Party to enforce at any time the provisions of these DCS Terms, or the failure to require at any time performance by the other Party of any of the provisions of these DCS Terms, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by either Party of any provision, condition or requirement of these DCS Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
9.7. Entire Agreement. These DCS Terms constitute the entire agreement of the Parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of these DCS Terms shall be binding unless in writing and signed by duly authorized representatives of the Parties. Whenever the words “include,” “includes,” or “including” are used in these DCS Terms, they shall be deemed to be followed by the words “without limitation.”
9.8. Notices. All notices required or permitted under these DCS Terms shall be in writing and delivered by confirmed facsimile transmission, confirmed email transmission, by courier or overnight delivery service, or by certified mail, and in each instance shall be deemed given upon receipt. All communications shall be sent to the addresses set forth in the Order or to such other address as may be specified by either Party to the other in accordance with this Section.
9.9. Authorization. Each Party hereby represents and warrants to the other that all necessary action has been taken to enter these DCS Terms and that the person signing an Order on its behalf has been duly authorized to do so.