TerraTech 360 Terms of Service

Introduction

1. These Terms of Service (these “Terms”) govern your use of the real estate and development management software platform provided by TerraTech 360, Inc. (“TerraTech”). If you are accepting these Terms in connection with your employment by, or role as a manager or officer of, a customer of TerraTech (“Customer”), these Terms are binding both on you individually and Customer, and you represent that you are duly authorized to bind Customer to these Terms. The term “you” in these Terms refers to both you as an individual and to Customer.
2. The term “Service” means TerraTech’s real estate and development management software platform provided as a software-as-a-service, related implementation services, and any associated software, technologies, documentation, and deliverables provided by TerraTech.
3. You agree to these Terms by either: (a) executing an Order (defined below) referencing these Terms, (b) accessing, registering for, or using the Service, or (c) by clicking or checking “I Accept” or similar language associated with the Terms. These Terms along with the Order constitute a legally binding agreement between you and TerraTech.

Changes to These Terms

TerraTech may change these Terms from time to time. When these changes are made, TerraTech will provide you with notice of the new Terms, either by making the new Terms available through the Service, by emailing a Customer administrative user identified in the Service, or by other means. You agree that your use of the Service after your receive notice of the updated Terms constitutes your acceptance of the updated Terms. You may terminate your use of the Service if you do not agree to any changed Terms.

Orders

The term “Order” means a written order accepted by TerraTech and Customer, an online Service sign-up page completed by Customer, or other document that references these Terms and is accepted by TerraTech and Customer. An Order will typically specify the specific Service including any options, applicable fees, the term, the number of users authorized to use the Service, and other terms.

Service and Support

1. Subject to your compliance with these Terms, including payment of applicable fees, TerraTech will provide the Service substantially in accordance with the documentation accompanying the Service.
2. TerraTech will from time to time add features to the Service, change the Service, or remove features of the Service. No such changes will, when considered as a whole, materially decrease the functionality of the Service during the applicable subscription term specified in the Order.
3. TerraTech will provide technical support for Service failures to up to three (3) designated Customer contacts via email and/or by phone during normal business hours (Monday–Friday, 9:00 a.m.–5:00 p.m. Eastern Time, excluding TerraTech holidays). Technical support shall be the first recourse to address any deficiencies, errors, or questions regarding the Service prior to opening a formal warranty claim or alleging breach. Technical support does not include enhancements or customizations to the Service.
4. TerraTech will use commercially reasonable efforts to make the Service available with an uptime of 99.9%, excluding:
   • Planned downtime, which will be scheduled outside of normal business hours. TerraTech will give Customer at least 24 hours’ notice of planned downtime, via the Service or email
   • Any unavailability caused by circumstances beyond TerraTech’s reasonable control, including internet failures, failures of Customer’s systems and services, and acts or omissions of third parties
   • Incidents of downtime that are less than five (5) consecutive minutes.
5. If you validly obtained a limited beta, evaluation, trial or other limited right to use the Service (the “Limited Service”) in the Order, you shall have a personal, non-exclusive and non-transferable license to use, for the term of the beta/evaluation/trial, the Limited Service solely for internal testing and evaluation and/or trial use. No warranties, service level, or similar commitments in these Terms apply to the Limited Service. The Limited Service is provided “AS-IS”, without warranty or indemnification of any kind. TerraTech does not promise that it will make the full Service available to any users of the Limited Service.
6. You shall reasonably cooperate with TerraTech and its suppliers in the delivery of Services hereunder, including by providing TerraTech and its suppliers with timely approvals and access to your technical personnel, information, systems, and other items as reasonably requested by TerraTech in connection with the delivery of the Service.

Your Account

1. Your account (including any associated username and password, your “Account”) for access to the Service is for your personal use only. You may not authorize others to use your Account, and you may not assign or transfer your right to use the Service. You agree to keep your Account details confidential.
2. You are responsible for all activities, charges, and liabilities associated with your Account. You agree to immediately notify TerraTech of any unauthorized use of your Account of which you are aware.
3. You shall take all reasonable precautions necessary to safeguard against unauthorized access and use of the Service through your Account.

Term and Termination

1. These Terms and your right to use the Service remain in effect for the term specified in the Order (the “Initial Term”), unless terminated earlier in accordance with these Terms.
2. Unless otherwise agreed in the Order, the Service will automatically renew for additional one-year periods (each, a “Renewal Term”) unless a party provides notice of non-renewal at least sixty (60) days prior to the start of the next Renewal Term. As used herein, “Term” means the Initial Term and all Renewal Terms.
3. If either party materially breaches these Terms or the terms of the Order, and such breach is not cured within thirty (30) days after written notice of the breach from the other party, then the other party may terminate the Order. TerraTech may suspend the Service upon notice to you if you breach these Terms or the terms of the Order.
4. Terms that by their nature would survive any termination or expiration of the Order will survive such termination or expiration, including Sections 9, 10, 11, 14, 15, 16, 17, 19, and 21 of these Terms.
5. Upon Customer’s request made within thirty (30) days after termination of the Order, and for a mutually agreed fee, TerraTech will deliver to Customer or its designee a copy of Customer Data held by TerraTech in the Service, in a csv format or other industry standard format selected by TerraTech.
6. To protect the integrity of the Service, TerraTech reserves the right at any time in its sole discretion to block individual users from accessing the Service, if such users appear to be violating these Terms, violating any laws, or otherwise threatening the integrity of the Service.

Right to Use the Service

1. During the Term, TerraTech grants you a limited, non-exclusive, non-transferable license to access and to use the Service solely for the benefit of Customer’s internal business, subject to your compliance with these Terms. You may not use the Service for any other purpose or after the end of the Term.
2. You shall provide, at your own expense, suitable equipment, software, and internet access as necessary to access and use the Service.

API Terms

1. The Service may include one or more application programming interfaces and/or software development kits (“APIs”). You agree to use any APIs in accordance with the terms and limits set forth in the associated documentation, as may be updated from time to time. You agree not to use any API in a manner that competes with the Services, or that provides API functionality to third parties.
2. TerraTech may update the APIs from time to time without notice to you. You acknowledge and agree that such updates may cause issues with any scripts, code or programs previously written with use of the APIs (the “Customer Code”), and that it is your sole responsibility to update any Customer Code. TerraTech does not guarantee backwards compatibility when it updates the APIs.
3. You agree that TerraTech has no liability or responsibility for mistakes or actions caused by Customer Code, and/or any errors, misuse or unintended use associated with your use of the APIs or Customer Code.

TerraTech Materials and Intellectual Property

1. TerraTech and its licensors own and retain all right, title, and interest in and to the Service, all underlying technology used with or otherwise enabling the Service, and all software, templates, and content associated with the Service, excluding Customer Data (collectively, the “TerraTech Materials”), including all associated intellectual property rights. Nothing in these Terms transfers any rights, title or interest in the TerraTech Materials to you, and TerraTech reserves all rights not expressly granted to you.
2. You agree not to remove, conceal, or alter any proprietary rights notices contained within the TerraTech Materials. You may not (and you may not permit anyone else to) extract, copy, modify, reverse engineer, or decompile the software associated with the Service.

Data

1. Customer shall retain ownership of data and information that is entered into the Service by Customer, including data and information imported into the Service from other systems (“Customer Data”).
2. Customer grants TerraTech a transferable (to TerraTech’s successor), non-exclusive license to use Customer Data for the purpose of providing the Service. Customer represents and warrants that: (i) it either owns Customer Data or is otherwise permitted to grant the license set forth in this paragraph; (ii) the use of Customer Data on or through the Service does not violate the privacy rights, publicity rights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the use of Customer Data in the Service does not result in a breach of contract between Customer and any third party.
3. TerraTech owns data derived from Customer’s use of the Service that has been aggregated or anonymized in a manner that prevents direct or indirect identification of Customer or Customer’s users, including performance and log information related to the provision, operation or improvement of the Service (“Operational Data”).

Fees

1. Customer agrees to pay the fees for the Service specified in the applicable Order, in accordance with the terms therein. All payment obligations are non-cancellable and all fees are nonrefundable. Fees may be increased upon thirty (30) days’ written notice to Customer, effective for the next Renewal Term.
2. All fees and other amounts payable by Customer in connection with the Services are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on TerraTech’s income. If Customer claims tax-exempt status for any purpose in connection with these Terms, Customer represents and warrants that it is a tax-exempt entity and will provide TerraTech upon request with a correct copy of Customer’s tax-exempt certification.
3. If Customer fails to timely pay amounts owed according to these Terms, and does not cure such failure after receiving at least fifteen (15) days’ prior notice from TerraTech, TerraTech may, without prejudice to its other rights and remedies: (a) charge interest on any unpaid amounts on a daily basis from the original due date at the rate of the lesser of 1.5% per month and the maximum amount permissible by law, (b) suspend or terminate Customer’s use and/or access to Service, or both (a) and (b). Customer shall reimburse TerraTech for all reasonable expenses TerraTech incurs in collecting past due amounts, including reasonable attorney’s fees and court costs.

Acceptable Use

1. You may only access the Service through the interface provided by TerraTech and for lawful purposes.
2. You agree that you will not, in connection with use of the Service, directly or indirectly:
   1. Upload, post, or otherwise transmit any content that contains any malware, viruses, spyware, worms, adware, or other malicious code or files;
   2. Disrupt the normal flow of communication in the Service or otherwise act in a manner that negatively affects any other user’s ability to use or benefit from the Service;
   3. Interfere with or disrupt the Service or servers or networks connected to the Service, or violate any requirements, procedures, policies, or regulations of networks connected to the Service;
   4. Access (or attempt to access) any part of the Service through any automated means (including use of scrapers, scripts, robots, spiders, or web crawlers), or in any way circumvent the navigational structure or presentation of the Service;
   5. Impersonate or attempt to impersonate TerraTech or an employee of TerraTech or any of its affiliates, another user, or any other person or entity, or otherwise misrepresent the identity, characteristics or qualifications of you or any other person;
   6. Use the Service for the purpose of developing, directly or indirectly, a product or service competitive to the Service;
   7. Conduct any penetration or vulnerability testing on the Service or TerraTech’s network; or
   8. Otherwise use the Service in violation of these Terms.

Security

1. TerraTech will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer Data.
2. You will: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and (ii) notify TerraTech immediately of any such unauthorized access and/or use of which you become aware.

Confidential Information

1. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Customer’s Confidential Information includes Customer Data, and TerraTech’s Confidential Information includes the Service, associated software and technology, and the Operational Data. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) is independently developed by the Receiving Party.
2. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own similar Confidential Information, but in no event less than reasonable care. The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose except to exercise a license right or perform an obligation under these Terms, and (ii) to limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents who need such access for purposes consistent with these Terms.
3. The Receiving Party may disclose Confidential Information of the Disclosing Party if the Receiving party is required by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such required disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

Disclaimers

1. Except as expressly set forth in this Agreement, the Service and TerraTech Materials are provided by TerraTech on an “as is” and “as available” basis, and TerraTech makes no representations or warranties of any kind, express or implied, as to the Service, TerraTech Materials, or other information, content or materials made available through the Service (collectively, the “Service Items”). TerraTech does not warrant or guarantee that the Service will be error-free or operate without interruption. You are solely responsible for omissions and errors in Customer Data.
2. The Service may include tools that assist with the management of engineering tasks. You acknowledge and agree that the Service does not provide or substitute for any engineering analysis and design, and TerraTech does not provide engineering services. You are solely responsible for verification of results obtained from the Service.
3. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TERRATECH DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TERRATECH DOES NOT WARRANT THAT THE SERVICE, TERRATECH MATERIALS, OR SERVICE ITEMS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.

Limitation of Liability

Neither party nor their suppliers or affiliates, nor their respective directors, employees, officers or representatives, will be liable under or relating to these Terms or the Service for any indirect, incidental, special, consequential, exemplary or punitive damages, or any lost profits, lost data, loss of goodwill, or loss of revenue, or other similar damages, even if advised of the possibility of such damages or if any remedy fails of its essential purpose. TerraTech’s total liability will at all times be limited to the fees paid to TerraTech under the Order during the twelve (12) months prior to the event giving rise to the cause of action. The limitations in this paragraph shall apply to the extent permitted by applicable law.

Indemnification

1. TerraTech will indemnify, defend and hold Customer harmless from and against any third-party claims, actions or suits, and associated losses, damages and liabilities, and all related costs and expenses (including reasonable legal fees), alleging that Customer’s authorized use of the Service infringes or misappropriates the intellectual property rights of a third party, except to the extent such infringement is a result of: (1) use of the Service in violation of the applicable documentation or license granted to Customer under these Terms; (2) modifications made by Customer not authorized by TerraTech; (3) TerraTech complying with written instructions or designs required or provided by Customer; or (4) Customer Data. This Section states TerraTech’s sole liability and Customer’s exclusive remedy for any claim of intellectual property infringement.
2. You will indemnify, defend and hold harmless TerraTech and its officers, directors, employees, agents, successors and assigns from and against any third-party claims, actions or suits, and associated losses, damages and liabilities, and all related costs and expenses (including reasonable legal fees), alleging that TerraTech’s use of any Customer Data as authorized infringes or misappropriates the intellectual property or other rights of such third party.
3. If an indemnified party believes it is entitled to indemnification hereunder, it will provide the indemnifying party with: (a) prompt written notice of the claim, provided that failure to give prompt written notice shall not limit the rights to indemnification except to the extent that the indemnifying party is materially prejudiced by such failure; (b) sole authority to defend or settle the claim, provided that the indemnifying party may not settle any claim that requires the indemnified party to admit any civil or criminal liability or incur any financial obligation without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld; and (c) reasonable assistance and cooperation in connection with the defense of such claim, at the indemnifying party’s cost. The indemnified party will be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim.

Privacy Notice

1. You (as an individual user) agree that TerraTech may use your personal information in accordance with our Privacy Notice located at https://terratech360.com/docs/privacy-policy as may be updated from time to time upon notice to you given by email or through the Service. To the extent that any third-party site or service accessible through the Service has different privacy practices, terms or conditions, those practices, terms or conditions will be explained at that website and will apply to that site or service, in lieu of these Terms and our Privacy Policy.
2. When communicating with TerraTech, you should provide only information that is reasonably necessary for TerraTech to respond. You agree not to provide TerraTech with any sensitive personal information (such as Social Security numbers, login information for financial accounts, or health information) without TerraTech’s prior written consent.
3. As part of the Service, TerraTech may from time to time communicate with you using the contact methods provided by you to TerraTech. You agree that if you or any of your users provide TerraTech with a mobile phone number or email address, TerraTech is authorized to contact you, including at that number or email address to provide the Service or otherwise manage your account.

Feedback

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information submitted to TerraTech relating to modifying or improving the Service (“Feedback”), whether solicited or unsolicited, are non-confidential. TerraTech may use Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You grant to TerraTech a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable, sublicensable license to use Feedback.

Apple iOS Terms

1. The terms in this Section apply only to the extent that you are using a TerraTech app on an Apple iOS device (iPhone or iPad). You have the non-exclusive right to use the TerraTech app on any Apple-branded Products that you own or control as permitted herein and by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
2. These Terms are between you and TerraTech only, and not with Apple. In the event that these Terms provide usage rules that are less restrictive than the Usage Rules set forth in, or otherwise are in conflict with, the Apple App Store Terms and Conditions (which you acknowledge you have had an opportunity to review), then the Apple App Store Terms and Conditions shall take precedence.
3. To the extent any warranty is provided hereunder, TerraTech, not Apple, shall be solely responsible for such warranty. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be TerraTech’s sole responsibility. The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the TerraTech app.
4. To the extent you have any claim relating to the TerraTech app, (a) TerraTech, not Apple, is responsible for addressing any claims by you or any third party relating to the TerraTech app or your possession and/or use of the TerraTech app, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation, and (b) in the event of any third party claim that the app or your possession and use of the app infringes that third party’s intellectual property rights, to the extent that TerraTech is required to provide indemnification, TerraTech, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Nothing in this Section shall be deemed an admission that you may have any such claims.
5. You agree to comply with applicable third-party terms of agreement when using the TerraTech app.
6. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

Miscellaneous

1. Each party agrees to comply with all laws applicable to it when performing its obligations or exercising its rights under these Terms.
2. All disputes arising out of or relating to these Terms and/or the Order shall be governed by the laws of the State of North Carolina (without regard to any conflicts of laws rules). All claims or disputes arising out of or relating to these Terms and/or the Order, including any question regarding their existence, validity, or termination, shall be resolved exclusively through binding arbitration administered by the American Arbitration Association (AAA) in accordance with its current Arbitration Rules. The arbitration shall be conducted in Charlotte, North Carolina. The arbitrator’s award shall be final and binding on all parties, and judgment on the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or equitable relief in a court of competent jurisdiction to protect its intellectual property.
3. EACH PARTY AGREES THAT ANY DISPUTE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS, AND THAT NEITHER PARTY SHALL HAVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, CLASS ARBITRATION, MASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING AGAINST THE OTHER PARTY. NO ARBITRATION OR PROCEEDING SHALL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
4. You may not assign these Terms or the Order or your rights or obligations under them to anyone. TerraTech may assign these Terms and the Order to its successor in connection with the sale of its business.
5. The failure of a party to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. No waiver of any term of these Terms by a party shall be deemed a further or continuing waiver of such term or any other term.
6. You and TerraTech agree that no partnership, agency, joint venture, or employment relationship is formed between you and TerraTech, and neither you nor TerraTech have the power or the authority to obligate or bind the other.
7. TerraTech shall not be liable for any failure or delay in the performance of its obligations due to causes beyond its reasonable control, including war, terrorism, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, pandemic, epidemic, outages and service issues associated with third parties, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or other disaster.
8. You agree to comply with all applicable export laws and regulations, including but not limited to the Export Administration Regulations and the International Traffic in Arms Regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties, including but not limited to the Specially Designated Nationals List and the Entity List. You shall not, directly or indirectly, export, re-export, or transfer the Service or any part thereof to any country or individual in violation of such laws and regulations. You shall be responsible for obtaining any necessary licenses or approvals required for compliance with such export laws and regulations.
9. The Service may contain artificial intelligence features (the “AI Features”), which will be identified as such in the Service or documentation. You agree to the following terms related to AI Features:
   • You expressly agree and consent to the inclusion of the AI Features in the SaaS Service.
   • AI Features are not designed, intended, or to be used as substitutes for professional advice.
   • Unless explicitly permitted, you may not use web scraping, web harvesting, or web data extraction methods to extract data from the AI Features.
   • You may not use the AI Features, or data from the AI Features, to create, train, or improve (directly or indirectly) any other AI service.
   • As part of providing the AI Features, TerraTech and its suppliers may process and store inputs to the AI Features as well as output from the AI Features, for purposes of monitoring for and preventing abusive or harmful uses or outputs of the AI Features.
   • You are solely responsible for responding to any third-party claims regarding your use of the AI Features in compliance with applicable laws (including, but not limited to, copyright infringement or other claims relating to content output during your use of the AI Features).
10. Except for Customer’s payment obligations, each party shall be excused from performance and shall not be liable for any delay or failure to perform caused by events outside of its reasonable control, including the occurrence of, war, pandemic, terrorism, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure of the Internet, failure of TerraTech’s service providers that are not reasonably preventable by TerraTech, act of any government affecting the terms hereof, explosion, flood or other act of God.
11. These Terms along with any applicable Order constitute the entire understanding between the parties pertaining to their subject matter, and any prior or other contemporaneous written or oral agreements between the parties are expressly superseded.
12. Any FAQs or similar documents included in or associated with the Service are for informational purposes only and are not deemed to be part of these Terms.
13. When the term “including” is used in these Terms, it shall be interpreted to mean “including, without limitation,”, so that the items after the term “including” are understood to be illustrative only and not a complete list.