PROEST’S END USER AGREEMENT
BY CHECKING THE ACCEPTANCE BOX OR USING THE SERVICE, AS DEFINED BELOW, YOU ACCEPT THE TERMS OF THIS AGREEMENT, WHICH IS BINDING AND ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE. IF YOU ARE USING THE SERVICE AS AN EMPLOYEE OR OTHER AUTHORIZED AGENT OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND THE COMPANY OR OTHER ENTITY THAT IS THE SUBSCRIBER HEREUNDER.
These Terms and Conditions (“Agreement”) govern the use of the multitenant web application (the “Service”) that is made available by ProEst, Inc. (“Provider”). This Agreement represents the whole agreement and understanding between Provider and the individual, company or entity who subscribes to the Service (“Subscriber,” at times also referred to as “you,” collectively with Provider as “Parties”).
1. Rights and Restrictions.
1.1 Purchased Subscription: Provider hereby grants Subscriber a non-exclusive, non-transferable, worldwide right to use the Service, solely for its own internal business purposes, subject to the terms and conditions of this Agreement.
1.2 Subscriber agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service; (ii) modify or make derivative works based upon the Service; or (iii) reverse engineer the Service.
1.3 Subscriber will not: (i) knowingly send or store infringing, obscene, libelous or otherwise unlawful or tortious material to the Service; (ii) knowingly send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, or programs to or from the Service; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its systems or networks; or (v) use the Service in violation of applicable law.
1.4 Non-Commercial Subscription: If Subscriber obtained an unpaid subscription to the Service for educational purposes or for a not-for-profit organization (“Non-Commercial Subscription”), it may use and access the subscription solely for non-commercial purposes for its educational institution or not-for-profit organization (each referred to as an “Organization”), as applicable. Eligibility for a Non-Commercial Subscription is based on verification by Provider, in its sole discretion, of Subscriber’s enrollment or employment, as applicable, with an Organization. Provider may terminate a Non-Commercial License at any time, with or without cause, and without liability to Provider of any kind.
2. Term. The term of this Agreement shall commence on the effective date and shall continue until the expiration of Subscriber’s account for the Service (the “Subscription”), unless terminated earlier in accordance with this Agreement and subject to paragraphs 14 and 15. The term of the Subscription is limited as specified in the Provider’s order form (“Order Form”) or in the purchase documentation if purchased through a Provider authorized reseller or partner (“Reseller”).
3. Charges and Payment of Fees. Subscriber will pay all fees and charges in accordance with the terms contained in the Order Form.
4. Billing and Renewal. Subscriber will pay Provider in advance for use of the Service. Provider’s fees are exclusive of all taxes, levies, or duties.
5. Reseller Sales. If Subscriber acquired the Subscription through a Reseller, Subscriber acknowledges that (i) payment terms for the Service must be established separately and independently between Subscriber and Reseller; (ii) this Agreement constitutes the entire agreement between Subscriber and Provider regarding the license rights for the Services and the obligations of Provider as set forth herein and is controlling; (iii) the terms and conditions of any purchase order of any other agreement between Subscriber and Reseller are not binding on Provider; (iv) Reseller is not authorized to alter, amend or modify the terms of this Agreement or to otherwise grant any license or other rights or any obligations related in any way to the Service; and (v) Subscriber’s nonpayment of any amount due to Reseller or any relevant third party relating to its licensed rights under this Agreement shall constitute a basis for Provider’s termination of this Agreement. Subscriber further acknowledges that Provider makes no representation or warranty, nor incurs any obligation with regard to any service or other products provided by Reseller, or any actions or failures to act by Reseller.
6. Subscriber Responsibilities. Subscriber is responsible for all activity occurring under Subscriber’s end-user accounts and will abide by all applicable laws, treaties and regulations in connection with its use of the Service. Subscriber is also responsible for safeguarding its subscription identification (“ID”) and password from any unauthorized use. In no event will Provider be liable for the unauthorized use or misuse of Subscriber’s ID or password.
7. Subscriber Data.
7.1 “Subscriber Data” means any data, details, figures, statistics, or any other information provided by Subscriber for use in the Service. Provider does not own the Subscriber Data. Subscriber Data is Subscriber’s proprietary and confidential information and will not be accessed, used or disclosed by Provider except as described in paragraph 7.2.
7.2 Subscriber grants Provider a royalty-free, perpetual use, and worldwide right to compile, collect, copy, modify, publish, display, and use anonymized, de-identified, and aggregated data generated from or based on Subscriber’s use of the Service and/or Subscriber Data (“Aggregated Data”), for analytical and other business purposes as determined by Provider.
8. Third-Party Technology and Services. Provider reserves the right to use third-party technology and services (“Third-Party Technology and Services”) in the development, support, maintenance, upgrade, enhancement, and management of the Service. Provider makes no warranty of any kind that the Third-Party Technology and Service, or any products or results of the use thereof, will meet Subscriber’s or any other person’s requirements; operate without interruption; achieve any intended result; be compatible or work with any software, web browser, system or other services except if and to the extent expressly set forth in the mutually agreed upon specifications; or be secure, accurate, complete, free of harmful code or error free.
9. Third-Party Data.
9.1 Provider may make available within the Service third-party data (“Third-Party Data,” collectively with Third-Party Technology and Services as “Third-Party Licensors”) for Subscriber’s voluntary use. Provider makes no warranty of any kind regarding the Third-Party Data’s freshness, accuracy, quality, and completeness. Subscriber agrees to use the Third-Party Data at Subscriber’s own risk.
9.2 If Subscriber purchased a license to RSMeans’ Construction Cost Database, the following terms apply to Subscriber’s license and use of that data:
Provider grants Subscriber a non-exclusive, non-transferable, limited sublicense to use and display the RSMeans Data Files (“RSMeans Data”) incorporated within the Service, provided that Subscriber complies fully with this Agreement. Subscriber is licensed to use RSMeans’ Data made available in the Service solely in the regular course of construction estimating and related work. The license includes the right to download and temporarily store insubstantial portions of RSMeans Data (“Downloaded Data”) in a spreadsheet for Subscriber’s personal and/or employment related use on a single storage device under Subscriber’s exclusive control solely (i) to display internally such Downloaded Data and (ii) to include and distribute the Downloaded Data in a construction estimate or related work prepared for a specific project, to be distributed to a specific party, provided such party agrees not to further disseminate the Downloaded Data. Subscriber acknowledges the responsibility in assuring compliance with the foregoing restrictions by any third party to whom Subscriber transmits Downloaded Data pursuant to the preceding sentence. Subscriber may not merge RSMeans Data available in the Service with any software program or extract such cost data other than into a spreadsheet for Subscriber’s personal and/or employment related use on a single computer. Subscriber may not use, copy, download, store, publish, modify, translate, transmit, transfer, sell or prepare derivative works of RSMeans Data, or any portion of RS Means Data, in any form or by any means, except (i) as expressly permitted by this Agreement, or (ii) with RSMeans’ express written permission. Downloaded Data shall not be stored or used in an archival database or other searchable database except as expressly permitted by this Agreement. Subscriber shall not sell, license or distribute RSMeans Data (including printouts and Downloaded Data) to third parties, except as expressly permitted by this Agreement, or use RSMeans Data as a component of or as a basis for pricing any material, service, or product offered for sale, license or distribution. In the event Subscriber makes use of RSMeans Data to create estimates for its own customers but subsequently amend the results in any way then Subscriber will alert such customers to the fact that the estimates were calculated using RSMeans Data, but subsequently amended by Subscriber.
Except for the license granted in this Agreement, all rights, title and interest in RSMeans Data, in all formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of RSMeans.
RSMeans is an express third party beneficiary with the right to enforce the terms and conditions of this Agreement against the applicable Subscriber in the event of any breach by such Subscriber of any terms or conditions relating to RSMeans Data.
10. Ownership. All title, intellectual property rights, proprietary rights, interest, methodologies, specifications, documentation, techniques, codes and materials used in the development of the Service and for the Service and all copies, modifications, and derivative works thereof, including any changes which incorporate Subscriber’s feedback, and Aggregated Data prepared by Provider, are owned or licensed by Provider and no ownership rights are being conveyed to Subscriber under this Agreement or otherwise. Nothing in this Agreement constitutes a waiver of Provider’s rights under any law, including but not limited to U.S. or international intellectual property law. All rights not specifically granted under this Agreement are reserved by Provider and the Third-Party Licensors. Specifically, Third-Party Licensors retain title to all third-party code, data, or tools owned by them. Subscriber retains all title and intellectual property rights to the Subscriber Data described in paragraph 7.
11. Downtime. While Provider will do everything in its power to keep the Service up and running with minimal interruptions, Provider cannot guarantee that the Service will never be subject to periods of downtime and assume no responsibility for any and all business losses as a result of the Service being unavailable for a period of time.
Provider takes no responsibility for, and will not be liable for any loss of data, information, business or financial profit, both potential and actual as a result of the Service being compromised through attacks involving malware, Trojans, viruses, worms and other malicious attacks. Nor will Provider be held responsible for any site downtime as a result of these attacks.
12. Scheduled Maintenance. From time to time, operation of the Service may be interrupted by scheduled maintenance such as software updates. Provider will try to schedule maintenance during times when it is anticipated that Subscriber use of the Service is lower than normal. Provider may also need to be able to do emergency maintenance and/or suspend access to the Service where, in its reasonable discretion, it determines the need to do so. When possible, Provider will offer advance notice of a scheduled maintenance to Subscriber.
13. Privacy. Provider’s privacy policy is available on Provider’s website. Provider may modify this policy in its reasonable discretion from time to time with notice to Subscriber.
14. Termination for Cause. Any breach of Subscriber’s payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. Provider may terminate this Agreement, Subscriber’s account, or Subscriber’s use of the Service if Subscriber commits a material breach of this Agreement or otherwise fails to comply with this Agreement, and such breach has not been cured within ten (10) business days after notice of such breach.
15. Survival. In addition to this section, the following sections, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive the termination of this Agreement: 7 (Subscriber Data), 8 (Third-Party Technology and Services), 9 (Third-Party Data), 10 (Ownership), 16 (Representations and Warranties), 17 (Disclaimer), 18 (Limitation of Liability), 19 (Indemnification), and 21 (General).
16. REPRESENTATION AND WARRANTIES: EACH PARTY HEREBY REPRESENTS AND WARRANTS THAT (I) IT IS A COMPANY OR OTHER ENTITY, IT IS DULY ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF THE PLACE OF ITS INCORPORATION OR FORMATION AND HAS FULL CORPORATE POWER AND AUTHORIZATION TO ENTER INTO THIS AGREEMENT AND CARRY OUT THE PROVISIONS HEREOF; (II) IT IS DULLY AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER; (III) THIS AGREEMENT IS A LEGAL AND VALID OBLIGATION BINDING UPON IT AND ENFORCEABLE ACCORDING TO ITS TERMS; (IV) THE EXECUTION, DELIVERY, AND PERFORMANCE OF THIS AGREEMENT DO NOT CONFLICT WITH ANY AGREEMENT, INSTRUMENT, OR UNDERSTANDING, ORAL OR WRITTEN, TO WHICH IT IS A PARTY OR BY WHICH IT MAY BE BOUND, NOR VIOLATE ANY LAW OF ANY COURT, GOVERNMENT BODY, OR ADMINISTRATIVE OR OTHER AGENCY HAVING JURISDICTION OVER IT; AND (V) IT WILL COMPLY WITH ALL APPLICABLE LAWS IN ITS PERFORMANCE OF THIS AGREEMENT.
17. DISCLAIMER. EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, NEITHER PROVIDER NOR THIRD-PARTY LICENSORS MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THIRD-PARTY TECHNOLOGY AND SERVICES, THIRD-PARTY DATA, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICE, THIRD-PARTY TECHNOLOGY AND THIRD-PARTY DATA ARE PROVIDED ON AN “AS IS” BASIS. PROVIDER DISCLAIMS ANY AND ALL LIABILITY FOR ANY THIRD-PARTY CODE, DATA OR TOOLS. NEITHER PROVIDER NOR THIRD-PARTY LICENSORS MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SERVICE, THIRD-PARTY TECHNOLOGY AND SERVICES, OR THIRD-PARTY DATA. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ENTIRE RISK AS TO THE USE OF THE SERVICE, THIRD-PARTY TECHNOLOGY AND SERVICES, AND THIRD-PARTY DATA IS ASSUMED BY SUBSCRIBER. SUBSCRIBER ALSO ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT, SUBSCRIBER HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
18. LIMITATION OF LIABILITY.
18.1 In no event shall Subscriber, Provider or Third-Party Licensors be liable regardless of the cause, for any special, indirect, incidental, consequential, exemplary or punitive damages, loss of goodwill, profits, business opportunity, anticipated savings, or data, work stoppage, or computer failure or malfunction, even if the affected party has been advised of the possibility of such damages, and whether the same arise in contract, tort (including negligence) or otherwise, resulting from Subscriber’s use of the Service.
18.2 Provider’s entire liability for claims or obligations arising under or related to this Agreement shall not exceed the subscription fees paid by Subscriber in the twelve (12) month period prior to the events giving rise to the claim or obligation.
18.3 The limitations on liability set forth in Sections 18.1 and 18.2 shall not apply to the extent prohibited by applicable law.
19. INDEMNIFICATION.
19.1 Indemnification by Provider. Provider will defend any action, claim, demand, or suit brought by a third party against Subscriber, Subscriber’s affiliates and respective officers, directors, employees, agents, successors, and assigns of Subscriber (“Subscriber Parties”) that is based on a claim alleging the Service as supplied by Provider to Subscriber infringes or misappropriates such third party’s U.S. issued patent, or any trademark, trade secret or copyright (an “Infringement Claim”) and Provider will indemnify and hold harmless the Subscriber Parties for any damages and costs (including reasonable attorneys’ fees) finally awarded against the Subscriber Parties by a court of competent jurisdiction for the Infringement Claim. Provider’s indemnification obligation under this section shall not apply: (i) if the Service is modified by any party other than Provider; (ii) the Service is customized in accordance with written specifications provided by Subscriber; (iii) if the Service is combined with products or processes not provided by Provider; (v) to any unsupported release of the Service or if Subscriber fails to incorporate an update provided by Provider that could have avoided the actual or alleged Infringement Claim; (vi) to workflows, output, analytic applications, algorithms, or other applications or programming built or created by or on behalf of Subscriber through or as a result of use of the Service; (vii) if Subscriber settles or makes any admission with respect to an Infringement Claim without Provider’s prior written consent. If an Infringement Claim is brought or threatened, Provider may, at its sole option and expense, use commercially reasonable efforts to either (i) procure a license that will protect Subscriber against such Infringement Claim without cost to Subscriber; (ii) modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate this Agreement and any applicable Order Form(s) and refund to Subscriber a pro-rata refund of the Subscription fees paid under such applicable Order Form(s) for the terminated portion of the term of such Order Form(s). The rights and remedies granted to Subscriber under this section states Provider’s entire liability, and Subscriber’s exclusive remedy, with respect to any third-party claim of intellectual property infringement.
19.2 Indemnification by Subscriber. Subscriber will defend any action, claim, demand, or suit brought by a third party against Provider, its affiliates, respective officers, directors, employees, agents, successors, and assigns of Provider or any Provider affiliate (“Provider Parties”) that is based on (i) Subscriber’s use, alteration, application or disclosure of the Service, Third-Party Technology and Services, or Third-Part Data in violation of this Agreement or applicable law; or (ii) any Subscriber sourced data or any output or results generated by Subscriber or the use thereof, and Subscriber will indemnify and hold harmless the Provider Parties for any damages and costs (including reasonable attorneys’ fees) finally awarded for such claims.
19.3 Indemnification Procedures. In order to seek and receive indemnification under this Agreement, the indemnified party must: (i) give prompt notice to the indemnifying party of the indemnifiable event; (ii) grant authority to the indemnifying party to defend or settle any related action or claim, provided that the indemnifying party will not enter into any settlement that would diminish the rights of the indemnified party or that includes an admission or fault or wrongdoing or the payment of money by the indemnified party; and (iii) provide at the indemnifying party’s expense, information, cooperation and assistance to the indemnifying party as may be reasonably necessary for the indemnifying party to defend or settle the claim or action. An indemnified party may participate, at its own expense, in any defense.
20. Basis of Bargain. The Parties acknowledge and agree that the foregoing sections on representations and warranties, disclaimers, limitation of liability, and indemnification fairly allocate the risks between the Parties and are essential elements of the basis of the bargain between the Parties.
21. General.
21.1 Entire Agreement. This Agreement represents the Parties entire understating and agreement regarding the Service, Third-Party Technology and Services and Third-Party Data, and supersedes any prior purchase order, communication, advertising, or representation between Subscriber and Provider and/or any Reseller. To the extent there is any conflict between the terms of this Agreement and the Order Form, the terms on the Order Form shall take precedence. Provider may make changes to this Agreement and will make such a version available to Subscriber in the menu section of the system. Subscriber agrees to be bound to this Agreement, as amended.
21.2 Severability. If any provision of this Agreement is held to be void, voidable, or unenforceable, the remaining portions of the Agreement shall remain in full force and effect.
21.3 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Subscriber may not assign this Agreement or any of its rights or obligations granted hereunder, including by operation of law, without the prior written consent of Provider, which shall not be unreasonably withheld or delayed. Any attempt to transfer or assign this Agreement without such written consent will be null and void. Provider may assign this Agreement and its rights hereunder to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Provider’s assets or voting securities.
21.4 Governing Law. This Agreement will be governed by laws of the state of California without regard to the choice or conflicts of law provisions of any jurisdiction.
21.5 Force Majeure. Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said party’s obligations when caused by Acts of God, strike, pandemic, acts of war, inability of supplies, material or labor, or any other cause beyond the reasonable control of the said party.
21.6 Notices. Any notice hereunder shall be in writing. If to Provider, such notice shall be sent to the attention of Jeff Gerardi at 16870 W Bernardo Dr. Suite 340, San Diego, CA 92127, or by email to jeff@proest.com. If to Subscriber, such notice shall be sent to the email address or business address provided to Provider and/or Reseller by the Subscriber.
21.7 Waiver. The failure of either party to exercise any right hereunder shall not be deemed to be a waiver of such right or any other right, nor a waiver of any continuing or subsequent breach or default of this Agreement by the other party.
21.8 Third Party Rights. Unless otherwise expressly provided in this Agreement, a person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement.
