BY USING THE VALUTRAC SERVICE, USER AGREES TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR AN ENTITY FOR WHOSE BENEFIT THIS SERVICE IS BEING USED, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between ValuTrac Software,Inc., a Texas corporation (ValuTrac) and the entity or individual user agreeing to these terms (User).
1) VALUTRAC SERVICE.This agreement provides User access to the web-based appraisal and vendor management service, including without limitation its user interface, layout and features and functions (Service) for the benefit of a customer of ValuTrac. Such customer, and not ValuTrac, determines the duration of the usage and how they will use User Data (defined below). User should Contact that customer if User has any questions regarding the usage of the User Data.
2) USE OF SERVICES.
a). User Data. ValuTrac must use industry best practice security measures to protect the data User uploads to the Service (User Data) from unauthorized access. User grant ValuTrac a perpetual, irrevocable license to use, modify and distribute the User Data as part of the Service it provides to its customers, and for customers to retain such data online within the Service or offline outside of the Service.
b). User Responsibilities. User (i) is responsible for User Data, (ii) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify ValuTrac promptly of any such unauthorized access, and (iii) may use the Services only in accordance with its user guide and applicable law.
c). Restrictions. User may not (i) use the Service to store or transmit infringing, libelous, orotherwise unlawful or tortious material, or to store or transmit material inviolation of third-party rights, (ii) interfere with or disrupt the inor performace of the Service, or (iii) attempt to gain unauthorized access to ices or their related systems or networks.
3) DISCLAIMER. THE SERVICE IS PROVIDED ON AN AS-IS BASIS. VALUTRAC DISCLAIMS ALL WARRANTIES, INCLUDING,WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VALUTRAC DOES NOT WARRANT THAT THE SERVICE CANNOT BE HACKED.
4) CONFIDENTIALITY.
a). Definition of Confidential Information. Confidential Information means all nonpublic information disclosed by ValuTrac to User, whether orally, visually or in writing (Confidential Information). ValuTrac’s Confidential Information includes without limitation the Service.
b). Protection of Confidential Information. User may not disclose to unauthorized parties or use any Confidential Information of ValuTrac for any purpose outside the scope of this agreement. User must limit access to Confidential Information to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with User no less restrictive than the confidentiality terms of this agreement.
c). Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to ValuTrac, (ii) was known to User prior to its disclosure by ValuTrac without breach of any obligation owed to ValuTrac, (iii) is received from a third party without breach of any obligation owed to ValuTrac, or (iv) was independently developed by User without use or access to the Confidential Information.
d). Disclosure Required by Law. User may disclose Confidential Information to the extent required by law or court order, but will provide ValuTrac with advance notice to seek a protective order.
5) PROPRIETARY RIGHTS.
a). Reservation of Rights by ValuTrac. The software, workflow processes, and other technologies provided by ValuTrac as part of the Services are the proprietary property of ValuTrac and its licensors, and all right, title and interest in and to such items,including all associated intellectual property rights, remain only with ValuTrac. ValuTrac grants no rights unless expressly provided in this agreement.
b). User Restrictions. User may not: reverse engineer the Services; remove or modify any proprietary marking or restrictive legends in the Service; or access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes.
6) EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
a). EXCLUSION OF CERTAIN DAMAGES. VALUTRAC IS NOT LIABLE FOR ANY INDIRECT,SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA OR INFORMATION OR LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
b). LIMITATION OF LIABILITY. VALUTRAC’S TOTAL LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT $500.
7) TERM, TERMINATION AND SUSPENSION OF SERVICE.
a). Term. This agreement continues month to month, until terminated by ValuTrac or the applicable ValuTrac customer.
b). Mutual Termination for Material Breach. If either party is in breach of any material term of this agreement, the other party may terminate this agreement at the end of a written 15-day notice/cure period, if the breach has not been cured.
c). Suspension of Service for Violations of Law. ValuTrac may immediately suspend the Services and remove applicable User Data if it in good faith believes that, as part of using the Services, User may have violated a law. ValuTrac may try to contact User in advance, but it is not required to do so.
8) INDEMNITY. To the extent allowed by applicable law, if any third-party brings a claim against ValuTrac related to User’s acts,omissions, data or information within the Service, User must defend, indemnify and hold ValuTrac harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim. This indemnity will not apply to the wrongful conduct of ValuTrac.
9) GOVERNING LAW AND EXCLUSIVE FORUM. This agreement is governed by the State of Texas, substantive laws,without regard to conflict of laws principles. Any dispute arising out of or related to this agreement must be brought in the state and federal courts for Dallas County, Texas. User consents to the personal jurisdiction of such courts and waives any claim that it is an inconvenient forum. The prevailing party in litigation is entitled to recover its attorneys’fees and costs from the other party.
10) MISCELLANEOUS. This agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. User is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation,promise or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it. Neither party may assign or transfer this agreement to a third party, except that without the consent of the other party this agreement may be assigned as part of a merger,or sale of all or substantially all of the assets, of a party. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
Last Revised January 30, 2019
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