As of Jan 1, 2018
This End User Agreement is Exhibit D to the Software as a Service Agreement (the “SaaS Agreement”) to which it is attached and it is also a click through agreement for any Authorized Users who may use the Platform through your unique User ID.
- Introductory Matters. This End User Agreement (“Agreement”) is a legal contract between you (either an individual or legal entity) and Precise Real Estate Solutions, Inc., a California corporation (“PRES”). This Agreement specifies the terms and warranty limitations between you and PRES for the PRES software to be used by you for storing, sharing, transmitting, accessing and using data stored on servers maintained by PRES or any third party selected by PRES (the “Software”) and related documentation (the Software and the related documentation are collectively referred to herein as the “Product”). You have a right to use the Product pursuant to the SaaS Agreement and this Agreement. The Product is not licensed or sold to you. You should carefully read all the terms and conditions of this Agreement before accessing or using the Software. Unless you have entered into a separate signed and written agreement with PRES providing otherwise, use of the Software indicates your agreement to be bound by all the terms and conditions of this Agreement between you and PRES. If you do not agree to these terms, promptly cease using Software and delete or otherwise destroy any related documentation in your possession. PRES’s willingness to provide you access to the Software is expressly conditioned on your acceptance of all of the terms of this Agreement.
UPON ACCESSING OR IN ANY WAY USING ANY VERSION OF THE SOFTWARE YOU ARE REAFFIRMING THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
- Access and Use. Pursuant to the SaaS Agreement and this Agreement, you will have a non-exclusive, non-assignable and worldwide right to access and use the Product (as further specified below) provided that you comply with all terms and conditions of the SaaS Agreement and this Agreement. You may access and use a non-downloadable version of the Software via either: (i) a unique user identification number provided to you pursuant to a SaaS Agreement between you and PRES (a “User ID”); or (ii) a unique access identification number (an “Access ID”) provided to you by or at the request of either another party (a “Master Customer”) that has a valid User ID pursuant to a Software as a Services Agreement (“SaaS Agreement”) between it and PRES or another party that has a valid Access ID provided to it by or at the request of a Master Customer. The Product is protected by the copyright laws of the United States and international treaty provisions. There are severe penalties, both civil and criminal, for copyright infringement. You may not download, copy or reproduce all or any portion of the Software. The usage fees for accessing and using the Product are as specified in the SaaS Agreement between PRES and the Master Customer pursuant to which you have been provided access to the Software. If you are not a Master Customer pursuant to a valid SaaS Agreement, you may be subject to a separate agreement between you and a Master Customer regarding any obligation you may have to pay any usage fees related to accessing and using the Software (and PRES may or may not be a party to any such agreement between you and a Master Customer).
- Ownership and Limitations. All rights to the Software and related documentation not expressly granted under this Agreement are reserved to PRES, including all patent, copyright, trade secret, trademark and other proprietary rights therein. You may not translate, decompile, disassemble or reverse engineer all or any portion of the Software or any related documentation. This Agreement does not authorize you to use PRES’s name or any of its trademarks (which include, but are not limited to, the words “Precise Real Estate Solutions” and PRES’s logo).
- Term and Termination. The right to use the Software and your other rights pursuant to this Agreement will continue until this Agreement is terminated. PRES may immediately terminate this Agreement and any rights granted herein if you fail to comply with any of the terms of this Agreement and you do not cure such breach within ten (10) days after PRES gives you written notice of such breach (and you are afforded such cure period only if such breach is curable and you have not received written notice of any other breach by you within the preceding 365 days) or if a Master Customer fails to comply with any of the terms of a SaaS Agreement pursuant to which you have been provided an Access ID and such Master Customer does not cure such breach within any applicable cure period within its SaaS Agreement with PRES. Upon the termination of your right to use the Software for any reason, you must immediately cease using the Software and related documentation and promptly return to PRES or destroy all copies of any related documentation.
- Data Storage and Access. The Software includes software enabling you to access, store, share, use and transmit data about transactions involving you and/or others (such data is referred to herein as the “Data”) and, if desired, to produce reports about the Data. PRES will store the Data on servers maintained by PRES (or any third party selected by PRES) and provide you with electronic access to the Data via a password protected web site. You agree to not: (i) retain, access, transmit or in any way use any Data regarding any third party without first obtaining the written consent of such third party authorizing you to retain, access, transmit and use Data regarding such third party; or (ii) retain, access, transmit or use any Data regarding any third party in any way that such third party does not expressly authorize by prior written consent.
- Data Deletion. PRES will store Data for the duration of your right to use the Software pursuant to this Agreement and you will have electronic access to the Data during that time period. PRES will use commercially reasonable efforts to attempt to notify you before any Data is deleted following any suspension or termination of your rights to use the Software pursuant to this Agreement, but PRES will have no liability for any Data deleted without prior notice to you.
- Service Level. PRES will use commercially reasonable efforts to provide you with electronic access to the stored Data with an annual uptime percentage (measured on a calendar year basis) of 99% at all times during which this Agreement and your right to use the Software remains in effect. This service level commitment does not apply to any unavailability, suspension or termination of access: (i) that result from a termination of services; (ii) caused by factors outside of the reasonable control of PRES, including any force majeure event or Internet access or related problems beyond the demarcation point of PRES; or (iii) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within the direct control of PRES).
- Indemnification. You will indemnify, hold harmless and defend PRES against any and all direct losses, liabilities, damages and expense (including direct losses suffered by PRES, and all reasonable attorney’s fees, whether or not legal proceedings are commenced) arising from any claim that your retention, access, transmittal, use or dissemination of any of the Data (i) violates any privacy rights of, or confidentiality obligations owed to, any of your clients or customers or any other third party, (ii) violates any law, rule or regulation or any way constitutes unlawful or unfair competition or (iii) gives rise to any other claim or right to legal or equitable relief.
- Password and Username. You will select your own user name(s) and password(s) to be used in using the Software and accessing the Data. You will safeguard the confidentiality of such user name(s) and passwords(s) and PRES will not be liable for any unauthorized access to or use of the Data.
- Confidentiality. You agree to keep confidential and hold inviolate any Confidential Information which you or any of your employees, agents or affiliates view or receive (or otherwise obtain) through any use of the Product, and you and your employees, agents and affiliates agree to not disclose or otherwise convey, or allow to be disclosed or conveyed, any Confidential Information either in whole or in part to any person or entity other than any other authorized users also validly granted access to the Software for any particular transaction. “Confidential Information” shall include, without limitation, any information received or obtained through any use of the Product that relates to any other party’s past, present or future: (a) business activities, products, and/or developments; (b) employees, customers, counterparties, third party suppliers and/or contractors; (c) intellectual property; (d) data made available through any use of the Product; (e) information relating to plans, pricing, methods, methodologies, processes, financial data, lists, apparatus, statistics, programs, research, development, systems, source code, and/or information technology; and/or (f) any other information that, given its nature, would reasonably be intended to be confidential. You agree to hold such Confidential Information in strict confidence and not to disclose to any person, firm or enterprise, or use any such Confidential Information other than as part of your authorized use of the Product pursuant to this Agreement. Confidential Information shall not include information which you can show by objective or verifiable evidence is: (a) in or becomes part of the public domain (or otherwise available to the public) other than by your disclosure in violation of this Agreement; (b) demonstrably known to you previously; (c) independently developed by you outside without the use of any Confidential Information of another party; or (d) rightfully obtained by you from one or more third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information (specifically PRES or other validly authorized users), which measures shall include both all reasonable measures and the highest degree of care that you use to protect your own confidential or proprietary information.
- No Reverse Engineering. You agree that you will not: (i) reverse engineer, decompile, or disassemble all or any portion of the Software, nor attempt in any other manner to obtain the source code for any of the Software; (iii) remove any proprietary notices, marks, labels, or logos from the Software or any related documentation; (iii) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Software or any product containing all or any portion of the Software be equipped with such a protection device; or (iv) commit any trademark, copyright or trade dress infringement or violate any other applicable laws regarding intellectual property protection or unfair competition by copying, emulating or otherwise reproducing any aspects of the Software or its user interface. You also agree that the Software and its related documentation constitute proprietary information of PRES and that they contain confidential information belonging to PRES.
- Compulsory Disclosure. Nothing contained within this Agreement shall prevent you or any other party from responding to a valid subpoena, discovery request, or other compulsory legal process; provided, however, that not less than fourteen (14) calendar days prior to your compliance with said legal process, you must notify PRES of the subpoena, discovery request, or other compulsory legal process and the identity, address, and telephone number of the attorney or entity imposing said process upon you; provide PRES with a copy of the subpoena, discovery request, or other compulsory legal process; and take no action to resist, oppose, obstruct, delay, or otherwise interfere any effort by PRES to seek a protective order, limitation order, stipulation, or similar compulsory or voluntary arrangement to protect the confidentiality of the information thus requested.
- Irreparable Harm. You agree that a breach of any provision in this Agreement by you may result in serious and irreparable injury to PRES. You agree that among other remedies it may pursue upon the occurrence of any breach or threatened breach hereof, PRES may seek and obtain, when appropriate, injunctive relief to prevent a breach or further breach of this Agreement or to restrain you or any other party from transmitting, recording, exploiting, replicating, or otherwise utilizing the Product or any related service or process, or any information obtained from any transaction, in any manner not expressly permitted by this Agreement. Nothing contained in this Section shall limit or waive PRES’s right to seek damages for a breach of this Agreement or any other applicable agreement.
- Information Not Warranted. All information provided by any person or entity other than PRES with respect to any transaction is not warranted by PRES to be accurate or complete. Such information is provided “as is” to you and any other users of the Product, and PRES makes no representation or guarantee regarding its accuracy or completeness.
- Limited Warranty and Remedies. PRES warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of a Master Customer’s first use of it (this warranty is referred to herein as the “Limited Warranty” and applies to each new version of the Software that may be released by PRES and rightfully accessed and used by a Master Customer). If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE NINETY (90) DAY PERIOD OF THIS LIMITED WARRANTY. AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software that are not labeled (or otherwise identified in writing by PRES) as a new “version” of the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety (90) day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
Your exclusive remedy for any breach of the Limited Warranty is as set forth below. Except for any refund elected by PRES, A MASTER CUSTOMER AND ITS USERS ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING, BUT NOT LIMITED, TO CONSEQUENTIAL DAMAGES, if the Product does not meet the Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails its essential purpose. The terms of Section 18 below (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into the Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. The Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction. PRES’s and its suppliers’ entire liability and your exclusive remedy shall be to, at PRES’s option from time to time exercised subject to applicable law, (i) replace defective media or documentation, as the case may be, (ii) use reasonable efforts to correct significant defects in the Software without charge, or (iii) refund any usage fees paid by you to PRES for your use of the applicable copy of the Software during the 90 day period prior to when you notified PRES in writing of the defect(s) and terminate all rights granted to you for such copy. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. This Limited Warranty is void if failure of the Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Outside the United States or Canada, neither these remedies nor any product support services offered by PRES are available without proof of purchase from PRES or an authorized international source. To exercise your remedy, contact: PRES at 888 Prospect Street, Suite 200, San Diego, CA 92037 Attn: Warranty Support.
- Disclaimer of Warranties. The above Limited Warranty is the only express warranty made to you regarding the Product and is provided in lieu of any other express warranties (if any) created by any documentation, packaging or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, PRES and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support or other services, information, software, and related content through the Product or otherwise arising out of the use of the Product. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT. By way of example, without limitation, PRES provides no warranties of any kind to any end-users accessing or otherwise using applications developed or otherwise obtained by you. Because programs such as the Software are inherently complex, PRES does not warrant that the Software is error-free or will operate without interruption. Furthermore, PRES does not warrant that the Software will work with any given database, network or network application. You acknowledge that due to the complexity of the Software, it is possible that use of the Software could lead to the unintentional loss or corruption of data or the failure to receive any notices that are generated or supposed to be generated by the Software. You assume all risks of such data loss or corruption and all risks related to any missed notifications. The Limited Warranty provided in this Agreement does not cover any damages or losses resulting from any data loss or corruption or any failure to receive any notices that are generated or supposed to be generated by the Software.
- Exclusion of Incidental, Consequential and Certain Other Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PRES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY OR DATA, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF PRES OR ANY SUPPLIER, AND EVEN IF PRES OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of PRES and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing (except for any remedy of repair, replacement or termination and refund elected by PRES pursuant to Section 16 of this Agreement with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount of usage fees actually paid by you to PRES for the Product during the one year period immediately preceding the date when such damage occurred or (U.S.)$50.00. The foregoing limitations, exclusions and disclaimers (including Sections 16, 17 and 18 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
- U.S. Government Rights. The Product (including all Software and related documentation that comprise the Product) is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Product. If you are using the Product on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Product. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Product, including your transfer and processing of any of your data or documents (“Your Content”) and providing any other party access to any of Your Content. You also agree not to use or distribute the Product in violation of any law, statute, ordinance or other regulation of any applicable jurisdiction (including export controls and unfair competition laws) or any obligation to which you are bound.
- Notices. All notices hereunder must be in writing and shall be sufficiently given for all purposes hereunder if properly addressed and delivered personally by documented overnight delivery service, by certified or registered mail, return receipt requested, or by e-mail. If the notice is to PRES, it must be delivered to the mailing address or e-mail address, as the case may be, set forth below (provided that PRES may change such address or e-mail address by giving written notice to you pursuant to this Section 22). PRES may give notice to you at any mailing address or e-mail address that PRES has on file for you. Any notice given personally or by documented overnight delivery service is effective upon receipt. Any notice given by registered mail or overnight delivery service is effective upon receipt, to the extent such receipt is confirmed by return receipt. Any notice given by e-mail is effective upon receipt, to the extent that receipt is confirmed, either verbally or in writing by the recipient. Any notice which is refused, unclaimed or undeliverable because of an act or omission of the party to be notified, if such notice was correctly addressed to the party to be notified, shall be deemed communicated as of the first date that said notice was refused, unclaimed or deemed undeliverable by the postal authorities, or overnight delivery service.
If to PRES:
Precise Real Estate Solutions, Inc.
888 Prospect Street, Suite 200
San Diego, CA 92037
Attn: Chief Executive Officer
The internal laws of the State of California shall control this Agreement, regardless of any laws on choice of law or conflicts of laws of any jurisdiction. This Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods and will be deemed a contract under seal. Any dispute arising under or related to this Agreement shall be resolved exclusively in state or federal court in San Diego County, California. You hereby consent to such exclusive jurisdiction and venue and waive any objections thereto.
This Agreement is the complete agreement between you and PRES concerning the Software and related documentation other than, if applicable, any separate Software as a Service Agreement between you and PRES (including any exhibits thereto). The failure or delay of PRES to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
This Agreement may be amended only by a written document signed on behalf of PRES by its President or Chief Financial Officer. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
This Agreement shall be construed in accordance with its fair meaning, with no regard whatsoever to who drafted this Agreement. As used in this Agreement, unless the context expressly indicates otherwise, the word “or” is inclusive and means “and/or” and the word “including” (and any variation of that word) is inclusive and means “including without limitation” (or a phrase of equivalent meaning).
Sections 3, 4, 6 and 8 through 23 of this Agreement will survive and remain enforceable following any termination of this Agreement.
If you have any questions concerning this Agreement or the software or related documentation, you may contact PRES’s customer service at www.preciseres.com or firstname.lastname@example.org.