Software Services Agreement
TERMS AND CONDITIONS
TERMS AND CONDITIONS
These Terms and Conditions govern the quote, purchase order, statement of work, or other ordering document (including any online registration process) (“Quote”) that reference and incorporate these Terms and Conditions (collectively with the Quote, the “Agreement”), provided such Quote is accepted by The Estimating Edge, LLC (“Estimating Edge”). As used herein, “Customer” refers to the party entering into the Quote with Estimating Edge.
All services provided by Estimating Edge under this Agreement (“Services”), including the Software Services and other services set forth on the applicable Quote(s) or otherwise provided by or on behalf of Estimating Edge, will be provided to Customer according to these Terms and Conditions, the Quote, and all schedules, exhibits, or other attachments made a part of this Agreement.
1.2 Software Services.
Estimating Edge will provide Customer with access to the software products and related services provided by Estimating Edge via a web browser and identiﬁed on the Quote (“Software Services”). During the Term and subject to Customer’s compliance with this Agreement, Estimating Edge grants Customer the non-exclusive, nontransferable, non-assignable, and limited right to allow Named Users to remotely access the Software Services in accordance with the terms of this Agreement solely for the beneﬁt of Customer in the ordinary course of Customer’s internal business operations.
1.3 Right to Modify Data.
Customer shall have the right to modify, add to, and delete from the data within the databases provided to Customer with the Software Services. Customer is not permitted to create new ﬁelds or modify the database structure, metadata or databases themselves.
Title ownership rights, and intellectual property rights in and to the following will remain in possession of Estimating Edge: (i) the Software Services and all suggestions, contributions, enhancements, improvements, additions, modiﬁcations, or derivative works thereto, and (ii) all Estimating Edge service marks, trademarks, trade names, and logos. No right or implied license or right of any kind is granted to Customer regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the Software Services or the documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the Software Services.
3.1 Fees; Payment Terms.
For Services provided under this Agreement, Customer will pay Estimating Edge the fees in the amounts set forth on the applicable Quote(s) or otherwise contemplated herein. Unless otherwise set forth on the Quote, applicable fees will be invoiced to Customer monthly in advance. Fees are non- cancelable and non-refundable. All amounts owed shall be Due Upon Receipt by Customer. After the Initial Term, and at the beginning of each Renewal Term thereafter, Estimating Edge may adjust the fees applicable during the upcoming Renewal Term upon written notice provided at least sixty (60) days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. All fees paid and expenses reimbursed under this Agreement will be in United States currency. Customer will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid when due.
The fees and expenses due to Estimating Edge as set forth in this Agreement are net amounts to be received by Estimating Edge, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by Customer or imposed on Estimating Edge in the performance of this Agreement or otherwise due as a result of this Agreement. This section will not apply to taxes based solely on Estimating Edge’s income.
4.1 Technical Requirements.
Customer must have required equipment, software, and Internet access to be able to use the Software Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Customer’s responsibility. Estimating Edge neither represents nor warrants that the Software Services will be accessible through all web browser releases.
4.2 Use of Software Services.
Customer shall not and shall not permit others in using the Software Services (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Estimating Edge; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (iv) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Estimating Edge; (v) misrepresent or in any other way falsely identify Customer’s identity or afﬁliation, including through impersonation or distraltering any technical information in communications using the Software Services; (vi) transmit or upload any material through the Software Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Estimating Edge’s, or any other person’s or entity’s, network, computer system, or other equipment; (vii) interfere with or disrupt the Software Services, networks or servers connected to the Estimating Edge systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Software Services; (viii) attempt to gain unauthorized access to the Software Services, other Estimating Edge customers’ computer systems or networks using the Software Services through any means; or (ix) interfere with another party’s use of the Software Services, including any parties Customer has done business with or choose not to do business with through the Software Services. Estimating Edge reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
Each party may disclose to the other party certain Conﬁdential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Conﬁdential Information” means any information that is of value to its owner and is treated as conﬁdential, including trade secrets; “Disclosing Party” refers to the party disclosing Conﬁdential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Receiving Party” refers to the party receiving any Conﬁdential Information hereunder, whether such disclosure is received directly or through Receiving Party’s employees or agents.
5.2 Requirement of Conﬁdentiality.
The Receiving Party agrees: (a) not to disclose or otherwise make available Conﬁdential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose the Conﬁdential Information of the Disclosing Party to its, and its afﬁliates, ofﬁcers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 5; (b) to use the Conﬁdential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Conﬁdential Information of Disclosing Party. Customer acknowledges that the Software Services and documentation are the Conﬁdential Information of Estimating Edge. Conﬁdential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Conﬁdential Information of the Disclosing Party; (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the conﬁdentiality of such information; or (e) is legally required to be disclosed.
5.3 Data Use; Prohibited Data.
Customer agrees that data derived by Estimating Edge from Estimating Edge’s performance of the Services or input by Customer may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis (“De- identiﬁed Data”) may be used by Estimating Edge to improve and develop Estimating Edge’s products and services. Notwithstanding anything contained in this Agreement, De- identiﬁed Data shall not contain (i) any information that identiﬁes or can be reasonably used to identify an individual person, (ii) any information that identiﬁes or can be reasonably used to identify Customer or its afﬁliates and their suppliers, or (iii) any information that identiﬁes or can be reasonably used to identify any activities or behaviors of Customer. For clarity, De-Identiﬁed Data shall not constitute Customer Conﬁdential Information.
5.4 Prohibited Data.
Customer acknowledges that Estimating Edge’s Services are not designed with security and asset management for processing any personal information that may be used to identify a speciﬁc person, such as name, address, phone number or social security numbers (“Prohibited Data”). Customer shall not, and shall not permit any Named User or other person to, provide any Prohibited Data through the Services. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data contains or constitutes Prohibited Data. “Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or a Named User by or through the Services.
ESTIMATING EDGE DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY ESTIMATING EDGE. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS. If Customer has access to The EDGE™ Fireprooﬁng Database, this Section 6 shall apply. While small sections may occasionally be updated, The EDGE™ Fireprooﬁng Database is largely based on the Underwriters Laboratories, Inc. Fire Resistance Manual Volume. Although the most popular tests are updated more frequently, Customer should insure that the test being applied is current for their use and make any changes needed. The ﬁreprooﬁng database is designed to allow Customer to easily add new ﬁre tests as they become available and to update existing tests. In the majority of the tests, the design, thickness of material and hourly ratings are generally clear and understandable. However, some designs and tests have multiple thicknesses available to the user for a given hourly rating. When such cases were found while creating the Fireprooﬁng database, Estimating Edge usually defaulted to using the greater thickness. The assumption is that it is better for the end customer to have too much material rather than too little. When using a test or design such as D-925 that has multiple thicknesses, it is up to the user to select the correct thickness from the design information section of the UL manual and modify their ﬁre test database to ﬁt their requirements. Estimating Edge recommends that every new Named User familiarize him or herself with all tests in the Fireprooﬁng Database. This will ensure that when the time comes, the proper thickness will be used in the calculations.
7.1 Exclusion of Damages.
EXCEPT AS PROVIDED IN SECTION 7.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Liability Cap.
EXCEPT AS PROVIDED IN SECTION 7.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ESTIMATING EDGE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
The exclusions and limitations in Section 7.1 and Section 7.2 shall not apply to: (a) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 5 (Non-Disclosure and Conﬁdentiality); or (b) a party’s obligations under Section 8 (Indemniﬁcation).
8.1 Customer Indemniﬁcation.
Customer shall defend Estimating Edge and its ofﬁcers, directors, employees, agents, afﬁliates, successors and permitted assigns against any claim, suit, action or proceeding (“Actions”) based on a claim that any information or materials provided by Customer, or Estimating Edge’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Estimating Edge to the extent based on such an Action.
8.2 Indemniﬁcation Procedures.
The party seeking indemniﬁcation hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemniﬁed party without the indemniﬁed party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemniﬁed party’s failure to perform any obligations under this Section 8.2 shall not relieve the indemnifying party of its obligations under this Section 8 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemniﬁed party may participate in and observe the proceedings at its own cost and expense.
9.1 Initial Term.
This Agreement shall commence on the Effective Date and shall continue in full force and effect for the initial term set forth on the applicable Quote (“Initial Term”), unless earlier terminated as provided for below. Thereafter, the Initial Term shall automatically renew for successive periods of one (1) year each (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party at least 30 days prior to the end of the then- current Initial Term or Renewal Term of its intent to not renew the Agreement.
Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below:
(a) By either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party including the failure to pay any fees due to Estimating Edge; or
(b) By either party if the other party makes an assignment for the beneﬁt of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
Upon termination of this Agreement for any reason, all rights and licenses granted by Estimating Edge hereunder to Customer will immediately cease. Within thirty (30) days after termination or expiration of this Agreement, each party shall return or destroy the Conﬁdential Information of the other party. In the event Conﬁdential Information of the Disclosing Party has been physically or logically stored or processed by the Receiving Party with its own or third party information such that the Conﬁdential Information of the Disclosing Party cannot reasonably be separated for return or destruction, such commingled data will be protected by the Receiving Party under the terms of this Agreement until it is destroyed by the Receiving Party in the ordinary course of business.
Termination of this Agreement or any Schedule will not affect the provisions regarding Estimating Edge’s or Customer’s treatment of Conﬁdential Information, provisions relating to the payments of amounts due, indemniﬁcation provisions, or provisions limiting or disclaiming Estimating Edge’s liability, which provisions will survive such termination.
All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certiﬁed mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) (c) by email or facsimile transmission with conﬁrmed answer-back, followed within fourteen (14) days by a copy delivered in one of the preceding manners; to the address set forth on the Quote, as may be amended by the parties by written notice to the other party in accordance with this Section 10.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may only be amended, modiﬁed or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conﬂict of law provision or rule. Any Customer purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, shall be null and void. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided that either party may assign the Agreement to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. This Agreement shall be binding upon and shall inure to the beneﬁt of the parties hereto and their respective successors and permitted assigns. For purposes of this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties. Each party acknowledges that a breach by a party of Section 2 (Rights Reserved) or Section 5 (Non- Disclosure and Conﬁdentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non- breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, speciﬁc performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. This Agreement is for the sole beneﬁt of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, beneﬁt or remedy of any nature whatsoever, under or by reason of this Agreement. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.