Highwire Contracting Partner Participation Agreement

This Contracting Partner Participation Agreement (“CPPA”) is entered into to be effective as of [DATE] (the “Effective Date”) by and between HIGHWIRE, INC., A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 700 DISTRICT AVENUE, BURLINGTON, MA 01803 (“HIGHWIRE”), AND [CONTRACTING PARTNER], A BUSINESS HAVING, AS ITS PRINCIPAL PLACE OF BUSINESS, [ADDRESS TO BE ENTERED LATER] (“CONTRACTING PARTNER”).The Contracting Partner is sometimes hereinafter referred to with second person personal pronouns such as “ you” or “yours.” Highwire is sometimes referred to herein with first person personal pronouns such as “we,” “us,” and “our.” Highwire has developed and operates a Contractor Assessment Safety Program (the “Program”), pursuant to which subcontractors, referred to as Contracting Partners, submit certain prescribed safety and financial information to Highwire, such information being used by Highwire, together with its array of proprietary algorithms and computer programs (collectively, the “Highwire System”), to create safety and/or financial assessments (“Assessments”) of subcontractors, including the Contracting Partner. Such Assessments are furnished to and used by the persons or entities designated by the subcontractors (including Contracting Partner), for purposes of evaluating subcontractors for work as further detailed in Paragraph 3 below. Contracting Partner desires to be a part of the Highwire System and desires to participate in the Program, and Highwire desires to have Contracting Partner become a part of the Highwire System and to participate in the Program. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto, intending legally to be bound, agree as follows:

1. 1. Binding Effect.
      1. DO NOT USE OR ATTEMPT TO USE THE PRODUCTS OR SERVICES OFFERED BY US, WHETHER THROUGH A WEBSITE OR OTHERWISE, UNTIL YOU HAVE CAREFULLY READ THIS CPPA, INCLUDING ALL OF ITS TERMS AND CONDITIONS. PLEASE UNDERSTAND THAT, BY using the Highwire.com website (“Site” or “Platform”) or any of the products or services provided by us, including (but not limited to) any of the products or services offered on www.Highwire.com you, on behalf of yourself as an individual as well as on behalf of the Contracting Partner, are agreeing to be bound by the following terms and conditions of this CPPA. If you do not wish to be bound by this CPPA, please discontinue all use of our products or services. Preferably, send us a termination or cancellation notice, as provided for in Paragraph 2(a) hereof.
      2. We expressly reserve the right to change the Terms and conditions of this CPPA from time to time upon reasonable notice to you, including via electronic notification or notification on the Site. It is your responsibility to review this CPPA from time to time and to familiarize yourself with any modifications. Your continued use of this Site or any of our products or services after notification of such modifications will constitute acknowledgment of the modifications and agreement to abide and be bound by the modified provisions of the CPPA. You can review the most current version of the CPPA at any time at www.Highwire.com/terms.
      3. This CPPA will become or has become binding upon you at the time you checked “I Agree” on the enrollment form that allowed you access to the Highwire System. The CPPA consists of this document and each document linked hereto. Your affirmation of agreement hereto includes your agreement to each of the documents linked hereto. Therefore, you are encouraged carefully to review both this document and all the documents linked hereto before clicking the “I Agree” button. Ancillary or supplementary documents furnished by you purporting to modify, disclaim, waive, or amend any of the provisions of the CPPA (including all its linked component parts) are hereby rejected and rendered entirely ineffective unless signed by one of our duly authorized officers.
   2. Term and Termination.
      1. This CPPA commences with the Effective Date and continues, unless sooner terminated as provided herein, for a period of one year (the “Initial Term”). This CPPA will automatically renew for successive one-year periods (each a “Renewal Term”) unless this CPPA is earlier terminated as provided herein or either you or we furnish a notice of nonrenewal no more than 60 days and no fewer than 30 days prior to the expiration of the Initial Term or any Renewal Term, as applicable. The Initial Term and the Renewal Terms, collectively, are referred to herein as the “Term.”
      2. This CPPA may be terminated for any reason or no reason upon 60 days’ advance notice from either party to the other party.
      3. This CPPA will terminate automatically upon termination of the Program by Highwire.
      4. Either party may terminate this CPPA if the other party is in default under or breaches any of the material provisions of this CPPA, provided that the non-breaching party furnishes to the breaching party notice of the breach and offers a cure period of thirty (30) days. If the breaching party timely and acceptably cures the noticed breach, then this CPPA will continue as though no breach and no notice of breach had occurred. If, however, the breaching party fails timely and acceptably to cure the noticed breach, then this CPPA will automatically terminate at the conclusion of the thirty-day cure period without other or further notice or action by the non-breaching party.
      5. No refunds are available to the Contracting Partner unless (i) Highwire terminates the Program; (ii) Highwire terminates this CPPA without cause or reason; or (iii) the Contracting Party terminates this CPPA because of the breach of a material provision of this CPPA that is not timely and acceptably cured by Highwire. Your sole compensation and Highwire’s entire liability for the matters referenced in Clauses (i) through (iii) hereof shall be a refund to you of the balance of your pre-paid unused annual fees pro-rated in accordance with the percentage of the annual period remaining in your current term.
      6. Paragraphs of this CPPA that are to survive termination or expiration of this CPPA, whether expressly or by implication, shall survive. Such surviving paragraphs shall include Paragraphs 9 through 12, 14, and 16 through 19 of this CPPA.
      7. The annual fee payable by Contracting Partner shall be the applicable fees (shown on Highwire’s pricing schedule) in effect as of the time of the Effective Date for the Initial Term and on the commencement of each Renewal Term for all Renewal Terms. Such annual fee shall be due and payable to Highwire as provided in Paragraph 8(b) hereof.
   3. Obligations of Contracting Partner.
      1. In order to participate in the Program, you agree to submit all information prescribed by Highwire to us in the required format and designate the Hiring Partners (as defined in Paragraph 3(b), below), owners, general contractors, and insurance companies that are authorized to receive your Assessments and your detailed safety and financial information (“Authorized Recipients”). You may add or delete Authorized Recipients and update your information at any time although it may take approximately five business days for such changes to be reflected in the Highwire System.
      2. No detailed safety or financial information will be shared with a Hiring Partner unless/until you explicitly designate that Hiring Partner as an “Authorized Recipient.” For purposes of this CPPA, a “Hiring Partner” is an owner, general contractor, insurer, or other person or entity that has a legitimate and lawful interest in subcontractor Assessments and that has entered into a contract to procure and license aforementioned services as a Hiring Partner with Highwire.
      3. In addition, limited public information (e.g., company or entity name, trade(s), scope of services, point of contact, geographic location) is provided to all Hiring Partners in the Highwire system, which allows Hiring Partners to extend bid invitations to any subcontractor (including Contracting Partner) enrolled in the Highwire system. However, no detailed safety or financial information will be shared with a Hiring Partner unless/until a subcontractor explicitly designates that Hiring Partner as an “Authorized Recipient” as detailed in Paragraph 3(b) above.
      4. You represent and warrant that the information you submit to Highwire on Highwire’s website and otherwise is (and will continue to be) true, accurate, and complete and that all policies, procedures, and documentation uploaded into the Highwire Assessment applications are accurate and fairly represent how your business will operate at sites, projects, and facilities.
   4. Use of Information.
      1. YOU UNDERSTAND AND AGREE THAT (I) THE INFORMATION YOU SUBMIT ALONG WITH PUBLIC INFORMATION (FOR EXAMPLE, OSHA RECORD-KEEPING DOCUMENTS, EXPERIENCE MODIFICATION RATING) WILL BE USED BY HIGHWIRE TO CREATE ASSESSMENTS OF YOUR SAFETY AND FINANCIAL STATUS; (II) THE AUTHORIZED RECIPIENTS WILL RECEIVE SUCH ASSESSMENTS FROM HIGHWIRE AND WILL HAVE ACCESS TO THE INFORMATION SUBMITTED BY YOU AND CERTAIN OTHER INFORMATION; AND (III) HIRING PARTNERS WILL RECEIVE (IN ADDITION TO THE INFORMATION REFERENCED ABOVE) LIMITED PUBLIC INFORMATION (E.G., COMPANY OR ENTITY NAME, TRADE(S), THE SCOPE OF SERVICES, POINT OF CONTACT, AND GEOGRAPHIC LOCATION), TO ENABLE SUCH HIRING PARTNERS TO EXTEND BID INVITATIONS TO ANY SUBCONTRACTOR (INCLUDING CONTRACTING PARTNER) ENROLLED IN THE HIGHWIRE SYSTEM.
      2. Highwire may de-identify and aggregate any information submitted by you and other subcontractors in a way that it does not contain identifiable confidential information of the Contracting Partner (“Aggregated Information”). Highwire owns all such Aggregated Information and may use it for any purpose and communicate it to any third party without any obligation to you. Aggregated Information is anonymous information, and is no longer Personal Information subject to data protection laws or regulations.
      3. Hirewire’s Information Security Management System (ISMS) is ISO 27001 compliant. As such, Hirewire takes specific precautions to protect your data and the Assessments as outlined in Hirewire’s Privacy Policy, which can be found at https://www.highwire.com/privacy-policy. In addition, Hirewire has developed a specific EEA Privacy Notice for Contracting Partners located in the European Economic Area, Great Britain, or Switzerland, which can be found at https://www.highwire.com/eea-privacy-notice. The aforesaid Privacy Policy and EEA Privacy Notice are incorporated herein by reference and made a part of this CPPA as fully and completely as though their contents appeared on the face hereof. You are, therefore, encouraged to read the said Privacy Policy and EEA Privacy Notice before you check “I Agree” on the Highwire’s enrollment form. Strictly limited to what is necessary to deliver Highwire`s services, to operate the Highwire System, or for you to take part in the Program, you grant to Highwire for the term of this CPPA a limited, world-wide, non-exclusive, transferable, sublicensable (also in multiple tiers) license to use your intellectual property rights that may be embodied in any information submitted by you to Highwire.
   5. Use of the Assessments.
      1. The Authorized Recipients are authorized to use Assessments and related information in their evaluations of subcontractors and in determining whether to employ and/or permit you to be employed as a subcontractor on their projects.
      2. Authorized Recipients have agreed with Highwire to use the Assessments and subcontractor-specific data only for their internal purposes and not to share the Assessments or the information you submit with parties outside their review teams. Review teams may include Construction Managers, General Contractors, and Insurance Representatives.
      3. Highwire is not responsible for improper treatment or disposition of information by information recipients or for violations of such agreements with Highwire by such recipients.
      4. Both Highwire and the Authorized Recipients may disclose your safety information when required by law or in order to prevent or mitigate dangerous or potentially dangerous situations.
   6. Obligations of Highwire.
      1. Highwire will provide you with reports indicating the results of your Assessment and, in Highwire’s discretion, related information. In addition, as a participant in the Program, Highwire will provide you with: (i) the ability to upload certain training certificates and insurance certificates; (ii) reminders about when such certificates are about to expire; and (iii) related information. (See program details at www.Highwire.com) Because Highwire’s Assessments use diverse criteria provided by individual Hiring Partners, you will not be provided with any financial Assessment results.
   7. Uses of Reports and Website Content.
      1. You may download, view, copy, and print reports and certificates provided to you by Highwire, subject to the following: (i) the reports may be used solely for participation in the Program and informational, non-commercial purposes and (ii) the reports (including the Assessments) may not be modified or altered in any way or shared with any third party other than an Authorized Recipient as part of your participation in the Program.
      2. You may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit, or distribute any information from the Highwire website in whole or in part without the express written authorization of Highwire.
      3. Elements of Highwire websites are protected by copyright, trade dress, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part, and no name, logo, image, graphic, sound, or phrase that is confusingly or deceptively similar to any element of any Highwire website may be used by Contracting Partner. No name, logo, image, graphic, sound, phrase or other content from any Highwire website may be copied or retransmitted unless expressly permitted in writing by Highwire.
      4. Strictly limited to what is necessary to take part in the Program and use Highwire`s services as permitted by this CPPA, Highwire grants to you for the term of this CPPA a limited, world-wide, non-exclusive, non-transferable, non-sublicensable license to use Highwire`s intellectual property rights that may be embodied in reports, website content or other parts of the Highwire System that you are allowed to use under this CPPA.
   8. Program Participation Cost.
      1. For participation in the Program, one time per year you pay Highwire the applicable amount set forth on Highwire’s then-current Pricing Schedule. Click here for the current Pricing Schedule and payment instructions.
      2. The cost for participation in the Program (as shown on the Highwire pricing schedule) is payable on the Effective Date for the Initial Term. For each Renewal Term, the cost of participation in the Program (as shown on the Highwire pricing schedule as of the commencement of each Renewal Term) shall be due and payable on the first day of each Renewal Term. Payments due hereunder will be considered delinquent if not paid in full as of the forty-fifth (45th) day following the specified due dates. Payments that are past due, at our election, may bear a late charge of the lesser of one and one half percent (1.5%) or the maximum rate permitted by applicable law.
      3. No refunds are available, except in the case of termination of this CPPA, as provided in Paragraph 2(e) hereof.
   9. Warranties.
      1. Neither Highwire nor any of its licensors, contractors, and Hiring Partners makes any representations or warranties about the Highwire System, the Program, the accuracy or suitability of the Assessments, or any information, content, documents, reports, and related graphs, charts, and graphics furnished by Highwire or published on any Highwire website (“Website Content”). The Assessments are created by Highwire using information provided by you, publicly available information, and algorithms and formulae (embedded in computer programs) the efficacy of which are matters of judgment. Highwire has no means of checking the accuracy of such information and does not do so, and cannot and does not guarantee the efficacy of the algorithms and formulae used to create the Assessments and, as a consequence, cannot be responsible for the accuracy of the Assessments. As a consequence, YOUR PARTICIPATION IN THE PROGRAM IS SOLELY AT YOUR OWN RISK AND ALL ASSESSMENTS, REPORTS, AND WEBSITE CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, whether expressed or implied.
      2. Highwire and its licensors, contractors, and Hiring Partners hereby disclaim all representations and warranties with regard to the Program, the Highwire System, the Assessments, reports, and the Website Content. THE SAID DISCLAIMERS INCLUDE ALL EXPRESSED OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, THE IMPLIED WARRANTY OF MERCHANTABILITY, AND THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, AND QUIET ENJOYMENT.
   10. Limitations of Liability.
       1. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL Highwire OR ITS LICENSORS , CONTRACTORS, OR HIRING PARTNERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES; ANY INCIDENTAL, CONSEQUENTIAL, OR LIKE DAMAGES; OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, REPUTATION, BUSINESS OR PROFITS, WHETHER IN AN ACTION OF EQUITY, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH PARTICIPATION IN THE PROGRAM, USE OR FUNCTIONING OF THE Highwire SYSTEM, THE ASSESSMENTS AND REPORTS, THE USE OR PERFORMANCE OF ANY HIGHWIRE WEBSITE AND THE WEBSITE CONTENT, OR PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES AVAILABLE OR PURPORTEDLY AVAILABLE UNDER THIS CPPA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND AND AGREE THAT THE ASSESSMENTS, REPORTS AND WEBSITE CONTENT COULD INCLUDE TECHNICAL INACCURACIES, ERRORS, OR OMISSIONS. ALTHOUGH CHANGES ARE PERIODICALLY MADE, HIGHWIRE AND ITS LICENSORS, CONTRACTORS, AND HIRING PARTNERS MAY, BUT ARE NOT OBLIGATED TO, MAKE IMPROVEMENTS AND/OR CHANGES IN THE INFORMATION, SERVICE(S), PRODUCT(S), AND/OR THE PROGRAM DESCRIBED HEREIN AT ANY TIME.
       2. WITHOUT LIMITING OR RESTRICTING, IN ANY WAY, THE FOREGOING DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS, UNDER NO CIRCUMSTANCES WILL HIGHWIRE OR ANY OF ITS LICENSORS, CONTRACTORS, HIRING PARTNERS, OR OTHER CONTRACTING PARTNERS BE LIABLE TO YOU FOR AN AMOUNT IN EXCESS OF THE FEES YOU PAID TO HIGHWIRE IN CONNECTION WITH USE OF THE CONSTRUCT SECURE SYSTEM AND PARTICIPATION IN THE PROGRAM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST DATE ON WHICH YOU NOTIFIED Highwire OF THE FACTS ALLEGEDLY GIVING RISE TO HIGHWIRE’S LIABILITY.
   11. Indemnification.
       1. To the fullest extent permitted by law, you shall indemnify against, hold Highwire harmless from, and (at Highwire’s option) defend any claim, cause of action, complaint, or suit or administrative proceeding, including any proceeding, investigation or claim by a private individual or entity, self-regulatory organization, state or federal department, agency, or commission, (collectively, an “Action”) against Highwire; any of its affiliates, licensors, contractors, and Hiring Partners; and their respective directors, officers, agents, employees, successors, and assigns (collectively, the “Indemnitees”) arising out of or in connection with: (i) an assertion that the information, content, or other materials or products or services provided or made available by you, or the use thereof, may infringe any patent, copyright, trademark, or other intellectual property rights of any individual or entity; constitute a misappropriation of any individual or entity`s confidential information or trade secrets; or contain any libelous, defamatory, disparaging, pornographic, or obscene materials; (ii) an assertion that an Assessment or any information provided in connection with an Assessment is inaccurate or otherwise defective; (iii) any breach by you of your obligations under this CPPA; and (iv) your use of any Highwire website, including the information, content, services, and/or products provided therein or thereby.
       2. You shall indemnify and hold harmless the Indemnitees from and against any and all damages, costs, liabilities, and attorneys` fees incurred in defending and/or resolving such Action. Your indemnification and defense obligations under this CPPA shall be at your sole cost.
   12. Compliance with Laws; Export Control.

   You agree to comply with all laws and regulations relating to your participation in the Program, including those relating to export and import, privacy, and personal data protection. Highwire’s obligation to fulfill this CPPA is subject to the proviso that it is not prevented by any impediments arising out of national and international foreign trade or customs requirements, including embargoes or other sanctions. This CPPA is subject to all United States laws and regulations as may be enacted, amended, or modified from time to time regarding the export from the United States of all or any part of the Highwire System (including the computer programs included therein), products, services, technology, or any derivatives thereof.

   13. Assignment.

   You shall not assign this CPPA without the prior written consent of Highwire. Highwire may freely assign this CPPA to its Affiliates; to its or their successors-in-interest or successors-in-title in the event of a change of control, merger, consolidation, or equity acquisition; or to the purchaser of all or substantially all of the assets that comprise the Program and the Highwire System. For purposes of this CPPA, an “Affiliate” of a party is any person or entity that controls such party, is controlled by such party, or is under common control with such party. This CPPA shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective parties hereto.

   14. Governing Law; Jurisdiction; Severability; No Waiver
       1. This CPPA shall be governed by, and construed in accordance with, the substantive laws of the Commonwealth of Massachusetts (U.S.A.) without regard to its conflict of laws principles. The parties expressly exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods. You hereby (i) submit to the exclusive jurisdiction of any state court sitting in Middlesex County, Massachusetts or federal court sitting in Boston, Massachusetts for the purpose of any action arising out of, or relating to, this CPPA; and (ii) irrevocably waive, and agree not to assert by way of motion, defense or otherwise, in any such action, any claim that you are not subject personally to the jurisdiction of such courts. (b) If any provision of this CPPA is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be enforced to the maximum extent possible and the remaining provisions of this CPPA shall continue in full force and effect to the maximum extent permissible without being impaired or invalidated in any way.
       2. Any failure to enforce any provision of this CPPA shall not constitute a waiver thereof or of any other provision hereof. Force Majeure.
       3. Neither party shall be liable under this CPPA by reason of any failure or delay in the performance of its obligations under this CPPA on account of riots, insurrections, fires, floods, storms, explosions, epidemic, pandemic, acts of nature, acts of terrorism, war, governmental action, earthquakes, or any other cause that is beyond the reasonable control of such party (“Force Majeure”). If, however, such delay suspends performance of this CPPA for more than sixty (60) days, either party has the right to terminate this CPPA at its discretion.
   15. Entire Agreement; Interpretation.
       1. This CPPA, including the accompanying/linked documents, constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, between the parties hereto with respect to the subject matter hereof.
       2. In this CPPA, the following guides to interpretation shall apply:
          1. Words in the singular shall encompass the plural and vice versa.
          2. Words of one gender will be held to include the other genders as the context requires.
          3. “Or” and “any” are not exclusive, and the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “but not limited to” or “without limitation.”
          4. A reference to a law includes any amendment or modification to such law and any rules or regulations issued thereunder.
          5. A reference to a person includes a natural person, an artificial person (such as a corporation, partnership, limited liability company, trust, or otherwise), and its permitted successors and assigns.
          6. A reference in this CPPA to an Article, Section, Attachment, Annex, Exhibit, or Schedule is to the referenced Article, Section, Annex, Exhibit, or Schedule of or to this CPPA in its entirety, including subsections and subparagraphs thereunder.
          7. The terms “hereof,” “herein,” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this CPPA as a whole (including all of the attachments and addenda to this CPPA) and not to any particular provision of this CPPA.
          8. All references to “$” or “dollars” herein mean U.S. dollars.
          9. Each of the representations, warranties, covenants, and conditions contained herein is separate and not limited or satisfied by the existence, wording, or satisfaction of any other representation, warranty, covenant, or condition contained herein.
          10. In computing any period of time under this CPPA , the day of the act, event, or default from which such period begins to run shall be included.
          11. A reference to “writing” or “written” includes a facsimile transmission, an email message, an electronic, magnetic, optical, or other embodiment that is capable of being perceived by the human eye, and any means of reproducing words in a tangible and permanently visible form.
   16. No Third Party Beneficiaries.

   Nothing in this CPPA, express or implied, is intended or shall be construed to confer on any person or entity other than the parties any right, remedy or claim, legal or equitable, and this CPPA and all of its provisions are intended to be, and shall be, solely and exclusively for the benefit of the parties.

   17. Notices.

   Notices to you under this CPPA shall be sufficient if posted by Highwire on its website at www.Highwire.com or emailed to you. Notices to Highwire under this CPPA shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to: Highwire, Inc., 450 Bedford Street, Suite 2200, Lexington, MA 02420.

   18. Status of Parties.

   Despite the use of the word “partner” in describing you, the “Contracting Partner,” herein and despite the use of the expression “Contracting Partner Participation Agreement,” you and we are not, strictly speaking, partners. We and you are not jointly and severally liable for the actions, omissions, and statements of each other. You are not authorized to make statements or promises that are binding on us, and we are not authorized to make statements or promises that are binding on you.