Highwire Freequal Terms and Conditions

By accessing or using the Highwire Freequal Software (the “Software”) you have entered into this agreement (the “Agreement”) with Highwire, the Terms and Conditions of which follow:

1. Definitions

In this Agreement: (i) certain terms are defined when first used herein; and (ii) the following terms have the meanings set forth below:

“Contractor” means a subcontractor or vendor or a potential subcontractor or vendor to the Freequal Client who completes a Prequalification and/or Safety Assessment using the Licensed Software.

“Freequal Software” or the "Software" is a free Highwire solution that allows Freequal Clients to organize key Contractor information in one centralized system. Freequal eliminates the manual tracking and follow-up during early-stage Contractor management that creates a strong foundation for streamlined risk management as a Freequal Client grows and evolves their risk management program.

"Freequal Client" means you, a party to this Agreement along with Highwire.

“Freequal Information” is the Contractor provided information that is available to the Freequal Client and includes corporate background information, W-9 forms, taxpayer identification numbers, diversity classifications, trades and service areas, licenses and certifications, insurance certificates, and past project experience.

“Prequalification Assessment” means the collection of a Contractor’s historic financial information, and the calculation of financial ratios and metrics based upon the Contractor’s financial statements loaded into the Licensed Software. The Freequal service does not include access to Prequalification Assessments for Contractors.

“Safety Assessment” means the safety rating questionnaire incorporated into the Licensed Software to be answered by Contractors, and the rating produced by the Licensed Software in response to the Contractor’s responses. The Freequal service does not include access to Safety Assessments for Contractors.

2. Access to the Hosted Software

2.1 Grant of License. During the Term, Highwire hereby grants, at no charge to the Freequal Client, a non-transferable, non-exclusive, non-sublicensable limited license to access and use the Licensed Software in accordance with this Agreement solely to solicit, review and manage Freequal Information for its own Contractors. Access to and use of the Licensed Software is limited to Freequal Client Authorized Users. The Freequal Client acknowledges that it is responsible for providing its own computer hardware, browser software, and telecommunications connections to access the Licensed Software.

2.2 Freequal Information for Contractors. During the Term, the Freequal Client may use the Licensed Software to solicit and obtain prescribed Freequal information from its Contractors. Upon completion of these requests by the Contractors, the Freequal Client shall be entitled to access and use such content (“Content”) in accordance with the terms of this Agreement. Content, including its truthfulness, accuracy, and completeness, is the sole responsibility of the entity that makes it available to Highwire and the Freequal Client acknowledges and agrees that Highwire is not liable for any inaccurate Content submitted by third parties or any inaccuracies in reports or records generated by/through the Licensed Software resulting from inaccurate data provided to Highwire through third parties.

3. Data and Confidential Information

3.1 Data Types. The parties acknowledge that certain types of data may be generated and used in connection with this Agreement: (i) “Freequal Client Data” meaning limited data that is required to establish Freequal Client user accounts in the Licensed Software and lists of Contractors who will require enrollment in Highwire; and (ii) “Contractor Data” meaning the information entered into the Licensed Software by a Contractor of the Freequal Client who is completing a Safety and/or Prequalification Assessment, including the Contractor’s Highwire scores.

3.2 Data Ownership Rights. As between the Freequal Client and Highwire and to the extent permitted by law: (i) the Freequal Client owns and retains all rights to Freequal Client Data and Highwire shall use Freequal Client Data only for the purposes of this Agreement; and (ii) the Contractor Data is confidential to the Contractor that disclosed the information and to Highwire. The Freequal Client is allowed to access Contactor Data via the Licensed Software provided that the Contractor explicitly designates the Freequal Client as being entitled to receive such information (an “Authorized Recipient”). The Contractor can revise its data sharing permission at any time within the Highwire Licensed Software at its sole discretion. Once designated by a Contractor as an Authorized Recipient, the Freequal Client shall use the Contractor Data only within the Freequal Client’s organization and with Freequal Client Authorized Users and shall not disclose the Contractor Data to any third party. Notwithstanding anything to the contrary herein, Highwire is permitted to use any Contractor Data or Freequal Client Data for any purpose, provided that it appears only in aggregate, anonymous form.

3.3 Data Security. Highwire’s information security management system is ISO 27001 and SOC2 Type 1 compliant. As such, Freequal Client Data and Contractor Data are managed in accordance with specific security measures outlined in the Highwire Privacy Policy. Upon request, Highwire will provide its ISO 27001 certification and/or SOC2 Type 1 independent audit report to active Freequal Clients, which shall be considered responsive to Freequal Client requests for Highwire security information.

3.4 Data Privacy. Highwire shall employ commercially reasonable efforts to implement processes and procedures to comply with applicable laws related to data privacy obligations, including the obligation to respond to individual data subject requests with respect to Freequal Client Data that could reasonably be used to identify a specific Freequal Client User or data or information defined as personal information or personal data under applicable laws (“Personal Data”) in Highwire’s possession or control. Highwire will process data as outlined in the aforementioned Highwire Privacy Policy and the Highwire Data Processing Addendum. The aforesaid Privacy Policy and Data Processing Addendum are incorporated herein by reference and made a part of this Agreement as fully and completely as though their contents appeared on the face hereof.

3.5 Confidential Information. “Confidential Information” means any and all technical, business, client or proprietary information, including Personal Data, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, orally or in writing, including, but not limited to, information regarding the Disclosing Party's business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, and software. Without limitation of the foregoing, the Licensed Software and the pricing and terms of this Agreement are Confidential Information of Highwire; the Freequal Client Data is Confidential Information of the Freequal Client.

3.6 Mutual Non-Disclosure. Each party shall: (i) treat as confidential all Confidential Information of the other party and not disclose such Confidential Information to any third party except as permitted by this Agreement and then only subject to confidentiality obligations at least as protective as those set forth herein; (ii) use Confidential Information of the other party only as expressly set forth herein or otherwise authorized in writing; and (iii) shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the other party's Confidential Information. Except as expressly authorized in this Agreement, neither party shall copy Confidential Information of the other party.

3.7 Exclusions. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) is generally available to the public through no improper action or inaction by the Receiving Party; (ii) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by written, documentary evidence prepared contemporaneously with such independent development; or (v) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party's rights.

Highwire is not a Business Associate or Covered Entity under the Health Insurance Portability and Accountability Act (“HIPAA”). No entity, Freequal Client, or Contractor that is subject to HIPAA or other federal or state privacy laws should share any information with Highwire that is not expressly permitted by applicable law.

3.8 Legal Process. The obligations set forth in Section 3.5 and 3.6 hereof shall not apply to the extent that disclosure of Confidential Information is required by law, regulation, ordinance, judicial process, or order. Before making a disclosure under this Section 3.8, however, the Receiving Party, to the extent permitted by law, must furnish the Disclosing Party notice thereof in advance and must cooperate (at Disclosing Party’s expense) with Disclosing Party in opposing or limiting disclosure of Disclosing Party’s Confidential Information.

4. Representations, Warranties, and Disclaimers

4.1 Mutual Obligations. Each party represents and warrants that: (i) it has full power and authority to enter into and perform its obligations under this Agreement; (ii) this Agreement constitutes a legal, valid, and binding obligation of such party, enforceable in accordance with its terms; and (iii) its execution, delivery, and performance of this Agreement do not and will not conflict with or result in a breach of any other agreement, obligation, or law to which it is bound.

4.2 Freequal Client Obligations. The Freequal Client represents, warrants, and covenants that it will: (i) comply with all applicable laws and regulations in connection with its access to and use of the Licensed Software; (ii) use the Licensed Software solely for its internal business operations and in accordance with this Agreement; and (iii) assume full responsibility for all access to and use of the Licensed Software by its employees, contractors, agents, and affiliates, including any unauthorized use.

4.3 Highwire Obligations. Highwire represents and warrants that: (i) it has the right to grant the license and provide access to the Licensed Software as set forth in this Agreement; and (ii) to Highwire’s knowledge, the Licensed Software, when used in accordance with this Agreement, does not infringe any valid third-party intellectual property rights. In the event of a breach of the foregoing warranty, Highwire’s sole obligation and the Freequal Client’s exclusive remedy shall be for Highwire, at its sole option, to: (i) procure the right for the Freequal Client to continue using the Licensed Software; (ii) modify the Licensed Software so that it becomes non-infringing without materially reducing its functionality; or (iii) terminate this Agreement. Under no circumstances shall Highwire have any financial obligations to the Freequal Client or others for any breach of the representations or warranties of Highwire under this Agreement.

4.4 Data Accuracy and Third-Party Content Disclaimer. The Freequal Client acknowledges that Contractor Data and Content within the Licensed Software are provided by third parties. Highwire makes no representations or warranties regarding the truthfulness, accuracy, completeness, or reliability of such data. The Freequal Client’s reliance on any such data or content is at its own risk, and Highwire shall have no liability arising from any falsity, inaccuracies, omissions, or errors contained therein.

4.5 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LICENSED SOFTWARE AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” HIGHWIRE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. HIGHWIRE DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE, UNINTERRUPTED, SECURE, OR THAT IT WILL MEET FREEQUAL CLIENT’S REQUIREMENTS OR EXPECTATIONS.

4.6 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HIGHWIRE BE LIABLE TO THE FREEQUAL CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

AS A FREE SERVICE, HIGHWIRE’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IS ZERO DOLLARS ($0.00), WHICH IS THE TOTAL FEES PAID BY THE FREEQUAL CLIENT TO HIGHWIRE FOR USE OF THE LICENSED SOFTWARE.

5. TERM AND TERMINATION

5.1 Term. The term of this Agreement commenced when the Freequal Client commenced accessing and using the Licensed Software, such access and use constituting a definite and reasonable acceptance of these Terms and Conditions. This Agreement shall continue until terminated, as provided in Section 5.2 hereof.

5.2 Termination. Highwire may terminate this Agreement at any time for any reason or no reason whatsoever, with or without notice to Freequal Client and without liability (financial or otherwise) to Freequal Client or others. Freequal Client may terminate this Agreement, with or without cause, upon the furnishing of ten (10) days’ advance written notice to Highwire. Notwithstanding termination of this Agreement, the obligations of Section 3.5 and 3.6 shall survive.

6. GOVERNING LAW AND JURISDICTION

This agreement shall be interpreted in accordance with the substantive laws of the Commonwealth of Massachusetts, without giving regard to its conflicts of law principles. Each party hereto irrevocably submits to jurisdiction and venue in the federal and state courts of Massachusetts (depending upon subject matter jurisdiction), any one of such courts being the exclusive forum for the resolution of any disputes between the parties hereto.