License Agreement
This License Agreement (this “Agreement”) governs your (“Customer”) use of the Application (as defined below) provided by ConnectPoint Resolution Systems, LLC (“ConnectPoint”). Customer and ConnectPoint are referred to individually as a “Party” and collectively as the “Parties”. By clicking “I AGREE” at the end of this Agreement, Customer understands and agrees that it is entering into this Agreement with ConnectPoint, and the Parties agrees to the following:
1. DEFINITIONS. As used in this Agreement, the terms in this Section 1 have the meanings indicated.
“Application” means the AssureCalc Version 1.6 software provided to Customer by ConnectPoint, and any updates, and upgrades, and new versions made available by ConnectPoint to Customer.
“Confidential Information” means ConnectPoint’s confidential or proprietary information (including business, financial and marketing information, third party confidential information, personally identifiable information, the Application, and the terms of this Agreement). The information provided by ConnectPoint through the Application is the Confidential Information of ConnectPoint.
“Images” means the overhead digital images of houses, buildings and other structures provided by ConnectPoint on the Site.
“IP Rights” means all rights that may exist under patent law, copyright law, publicity rights law, moral rights law, trade secret law, trademark law, unfair competition law or other similar protections, whether or not such rights are registered or perfected.
“Marks” means all proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names ConnectPoint adopts to identify ConnectPoint, its products, the Application, or any related parties or materials.
“Site” means the website owned and operated by ConnectPoint at www.assurecalc.com.
2. RIGHT TO USE THE APPLICATION. Provided that Customer has paid for the Application and any applicable fees for the Images as set forth on the Site, ConnectPoint hereby grants to Customer during the Term a limited, non-exclusive, nontransferable, license to (a) install and use one copy of the Application on a personal computer located in the United States, and (b) download as many Images as paid for by Customer for use solely with the Application, in each case for the express purpose in Section 4.1 below. No other rights are granted except as expressly set forth in this Agreement.
3. TERM. This Agreement is effective from the date Customer clicks “I AGREE” at the end of this Agreement until terminated as provided in Section 11 (the “Term”).
4. CUSTOMER RESPONSIBILITIES.
4.1. Authorized Use. ConnectPoint will provide allow Customer with to create a user name and password to access the Application. Customer is responsible for protecting the password and for any authorized or unauthorized use made of the password. Customer may download iImages provided by ConnectPoint on the Site based on the service plan selected by Customer on the Site. Subject to Section 6.1, Customer may use the Application to measure various points the surface area of the structure on the Image and then save that Image (the “Saved Image”). and The next time Customer logs onto the Site after creating a Saved Image, the Saved Image will be automatically uploaded it to ConnectPoint’s Site.
4.2. Customer Representations and Warranties. Customer represents and warrants to ConnectPoint that (a) it is validly existing and in good standing and has all power necessary to execute, deliver and perform its obligations under this Agreement without any third party consent, (b) the execution, delivery and performance of this Agreement by Customer (i) has been approved by any necessary company action (if Customer is an entity), (ii) is not contrary to, or in conflict with, the articles of incorporation or bylaws of Customer (if Customer is an entity), any material agreement by which Customer is bound, or any applicable law, and (iii) does not breach any contract or agreement with any third party, and (c) Customer will comply with all laws applicable to the use of the Application and the Site.
5. RESTRICTIONS.
5.1. General Use Restrictions. Except as expressly provided in this Agreement, Customer shall not copy or reproduce any information provided by ConnectPoint, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of data, presentation, style or organization. Customer shall not violate or attempt to violate the security of the Application.
5.2. Specific Use Restrictions. Customer will take reasonable care not to, and shall not intentionally or knowingly, use the Application (a) to post, transmit, distribute, store or destroy any information in violation of any applicable law, statute, ordinance or regulation, (b) in a manner that will infringe the IP Rights of others, or (c) to post, transmit, distribute viruses, trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, or intercept any system, data, or the Application.
5.3. No Reverse Engineering. Customer shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the software comprising or in any way making up a part of the Application or an Image.
6. PROPRIETARY RIGHTS.
6.1. Ownership. As between ConnectPoint and Customer, ConnectPoint is the sole and exclusive owner of all of the inventions, software, technology, expertise, know-how, materials and IP Rights contained in or a part of the Application, the Site, and in the an Image. ConnectPoint’s IP Rights include the Application and any works based on or derived from the Application, including any future versions, improvements or enhancements of the Application. Customer hereby assigns all IP Rights in any derivative works Customer makes of any Images, including any Saved Images.
6.2. Marks and Copyrights. Customer shall not remove, alter, deface, obscure or otherwise modify any of ConnectPoint’s Marks that are displayed on the Application, whether such ConnectPoint Marks are displayed or otherwise rendered by software or on printed media. In addition, Customer shall not adopt or otherwise utilize any Marks containing confusingly similar names, designs or other indicia to ConnectPoint’s Marks nor dilute ConnectPoint’s Marks in any manner.
7. CONFIDENTIAL INFORMATION.
7.1. Duty of Confidentiality. The Confidential Information of ConnectPoint is the property of ConnectPoint. Customer agrees to (a) hold in strict confidence all Confidential Information of ConnectPoint, (b) use such Confidential Information solely to perform or to exercise its rights under this Agreement, and (c) not to transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity. Customer will not use (except as expressly provided in this Agreement) or disclose ConnectPoint’s Confidential Information without the prior written consent of ConnectPoint. Customer will use the same degree of care to protect ConnectPoint’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care.
7.2. Duties Upon Termination or Request of Disclosing Party. Upon the termination or expiration of this Agreement or upon the earlier request of ConnectPoint, Customer will (a) at its own expense, (i) promptly return to ConnectPoint all information that is in tangible form (and all copies thereof) that is the property of ConnectPoint or that contains any Confidential Information of ConnectPoint (collectively, the "Material Information"), or (ii) upon written request from ConnectPoint, destroy such Material Information and provide ConnectPoint with written confirmation of such destruction, and (b) cease all further use of any Material Information, whether in tangible or intangible form.
7.3. Remedies Upon Breach. Customer agrees that ConnectPoint may have no adequate remedy at law if there is a breach or threatened breach of this Section 7 and, accordingly, that ConnectPoint shall be entitled (in addition to any legal or equitable remedies available to ConnectPoint) to injunctive or other equitable relief to prevent or remedy such breach.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONNECTPOINT MAKES NO EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND TO CUSTOMER WITH RESPECT TO THE APPLICATION, IMAGES, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SERVICE IS ON AN “AS IS” BASIS AND AT CUSTOMER’S OWN RISK. THE IMAGES AND OTHER MEASUREMENTS TAKEN OF THE IMAGES MAY NOT BE ACCURATE. CONNECTPOINT IS NOT LIABLE OR RESPONSIBLE FOR ANY INNACCURACIES IN THE IMAGES. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY THE PARTIES.
9. INDEMNIFICATION.
9.1. ConnectPoint Indemnity. ConnectPoint will indemnify, defend and hold Customer harmless from and against all third-party claims, demands, causes of action, debts or liabilities (including reasonable attorneys’ fees and expenses) (collectively, “Claims”) brought to the extent such third-party Claims arise from a claim that the Application infringes any United States IP Right of a third party, except that ConnectPoint will not have any liability for any Claim to the extent it arises from: (a) any modification of or addition to the Application by a party other than ConnectPoint; (b) the combination, operation or use of the Application with products or services not supplied or specified by ConnectPoint; (c) Customer’s failure to use the most current version of the Application or any updates or other modifications to the Application provided by ConnectPoint; or (d) the use of the Application other than in compliance with applicable specifications and the rights granted under this Agreement.
9.2. Infringement Remedies. If the Application becomes or in ConnectPoint’s reasonable opinion is likely to become the subject of a claim of infringement, ConnectPoint may, at ConnectPoint’s option: (a) procure the right for Customer to continue using the Application at no additional cost; (b) provide a non-infringing replacement service at no additional cost; or (c) terminate Customer’s right to use the Application and provide a refund for any unused pre-paid fees for the Application. Sections 9.1 and 9.2 state Customer’s exclusive remedy and ConnectPoint’s entire liability with respect to infringement of any IP Rights by the Application.
9.3. Customer Indemnity. Customer will defend, indemnify and hold harmless ConnectPoint and ConnectPoint’s affiliates, and each officer, director employee, and agent of ConnectPoint, from and against all third party Claims: (a) that any Customer content published or distributed through the Application infringes any intellectual property right of a third party, including but not limited to copyright; (b) arising from or resulting from Customer’s violation, or alleged violation, of any federal, state or local law or regulation in its use of the Application or Site; and (c) Customer’s use of the Application other than as expressly permitted under this Agreement.
9.4. Indemnification Procedure. The Party seeking indemnification (the “Indemnitee”) must notify the Party with the indemnification obligation (the “Indemnitor”) in writing, with reasonable promptness, of any claim under this Section 9. However, failure to satisfy this condition precedent relieves the Indemnitor of its obligations to indemnify for a claim only to the extent that the Indemnitor has been actually prejudiced by the Indemnitee’s failure to give notice as required. The Indemnitee shall reasonably cooperate with the Indemnitor in the Indemnitor’s defense or settlement of any claim. For purposes of this Section 9, the Indemnitee may participate in the defense of any claim at its expense and through counsel of its own choosing.
10. LIMITATION OF LIABILITY. EXCEPT WITH REGARD TO CLAIMS ARISING UNDER SECTION 7 (CONFIDENTIAL INFORMATION), THE INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT, OR CUSTOMER’S VIOLATION OF SECTIONS 2, 4.1, 5, OR 6.1 , WITH RESPECT TO EACH OF WHICH LIABILITY SHALL NOT BE LIMITED PURSUANT TO THIS SECTION 10, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) LOSS OF PROFIT, INCOME OR SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND (B) IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY THEORY OF LAW EXCEED $1,000.
11. TERMINATION.
11.1. ConnectPoint Termination for Cause. ConnectPoint may terminate this Agreement (a) immediately if Customer uses the Application, Image, or other ConnectPoint Confidential Information, or any copy or modification thereof, in violation of this Agreement, or (b) upon written notice to Customer if Customer has breached any other provision of this Agreement, and such breach is not fully cured within five days of ConnectPoint’s written notice.
11.2. Termination for Other Reason. ConnectPoint may terminate this Agreement by providing Customer with 10 days’ written notice and by refunding to Customer any unused pre-paid Application fees.
11.3. Effect of Termination. If this Agreement is terminated pursuant to this Section 11, Customer will immediately uninstall the Application and discontinue all use of the Application and as set forth in Section 7.2, destroy or return to ConnectPoint (as directed by ConnectPoint) all Images and Confidential Information related to the Application or ConnectPoint. The termination of this Agreement does not affect any claim arising prior to such termination.
12. MISCELLANEOUS
12.1. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of the permitted successors and assigns of each Party. Customer may not assign, delegate or otherwise convey this Agreement, or any of its rights and obligations hereunder, to any entity without the prior written consent of ConnectPoint, and any such attempted assignment, delegation or conveyance without consent shall be void.
12.2. Force Majeure. If either Party is prevented from performing its obligations under this Agreement due to any cause beyond the Party's reasonable control, the time for such Party's performance will be extended for the period of delay or inability to perform due to such occurrence; provided, however, that the payment of any amounts owed by Customer to ConnectPoint is not excused by the terms of this Section.
12.3. Enhancements. Customer shall, upon ConnectPoint’s reasonable request, implement all enhancements or modifications to the Application.
12.4. Amendment. No waiver, consent, or modification of terms of this Agreement shall bind either Party unless in writing and signed by both Parties, and then such waiver, consent, or modification shall be effective only in the specific instance and for the specific purpose given.
12.5. Notices. All notices, reports, invoices and other communications required or permitted hereunder to be given to or made upon any Party in writing, are considered as properly given if: (a) sent by an express courier delivery service which provides signed acknowledgments of receipt; or (b) deposited in the U.S. certified or registered first class mail, postage prepaid, return receipt requested. All notices are effective upon receipt.
12.6. Governing Law; Interpretation. This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Texas, excluding its rules of conflicts of law; provided, however, that during the Term, the Uniform Computer Information Transaction Act will not apply even if adopted as part of the laws of the State of Texas.
12.7. Severability. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
12.8. Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right operate as a waiver of any right by such Party.
12.9. Relationship of the Parties. Nothing in this Agreement is intended or shall be construed to create or establish any agency, partnership or joint venture relationship between the Parties. The Parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder and agree that the Parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein.
12.10. Counterparts; Execution. This Agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts together shall constitute one and the same instrument. Execution may be effected by delivery of facsimiles of signature pages (and the Parties shall follow such delivery by prompt delivery of originals of such pages).
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.