End User License Agreement
1) RESTRICTIONS. In addition to all prohibitions contained elsewhere in any other agreement between Accurence, Inc. ("Accurence") and the party accessing an Accurence Web Site or using the Accurence services and applications such as SettleAssist or ScopeAssist, (all together the "Web Site") (including without limitation any separate Web Site Access Agreement) ("User") and any person accessing or using the Web Site or using the Accurence services and applications through, for, or on behalf of User ("User Agents"), on behalf of itself and its User Agents, the User agrees that it and its User Agents will not:
rent, lease, license, loan, transfer, assign, sell, copy, or distribute or otherwise provide access to Web Site in whole or in part, on a temporary or permanent basis, except as permitted by this EA Agreement; use Web Site or any portion thereof to create any tool or software product that can be used to create software applications of any nature whatsoever; otherwise use Web Site except as authorized herein; or use Web Site in any unlawful manner whatsoever; remove, alter, cover, obfuscate, and/or otherwise deface any proprietary notices in or on Web Site; modify, alter, adapt, decompile, disassemble, reverse engineer or emulate the functionality, reverse compile or otherwise reduce to human readable form, or create derivative works of Web Site, in whole or in part, without the express prior written consent of Web Host; and/or use any Web Host Trademarks (as defined herein) other than pursuant to Section 2 or Web Host's written instructions.
2) OWNERSHIP OF INTELLECTUAL PROPERTY. On behalf of itself and its User Agents, User acknowledges that Accurence and Web Host are the respective owners of all rights, titles and interests in and to all Intellectual Property and all Intellectual Property Rights in the Web Site software in any form whatsoever including: a) the services and any other products or services offered by Web Host at any time throughout the Term; b) the technology available as part of the services; and c) all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material contained in the Web Host software or in the services. The User acknowledges that (i) the Web Host software, the services and any other products or services offered by Web Host are protected by Canadian and international copyrights, trademarks, service marks, patents, or other proprietary and intellectual property rights and laws and (ii) that it and its User Agents claim no proprietary rights in any Intellectual Property of Web Host, and will be entitled to only such rights with respect to the services as are specifically granted in that certain License and Services Agreement by and between Accurence and Customer, as may be amended in writing from time to time (the "LA"), and may be used only in accordance with the terms and conditions of the LA and this EA Agreement. Web Host, mobile claim, Web Host.NET and other pending and/or registered trademarks and service marks, and other graphics, logos, and service names used by Web Host in connection with the services other products, or services offered by Web Host to identify the products or services of Web Host (collectively the "Web Host Trademarks") are the trademarks of Web Host. On behalf of itself and its User Agents, User and its User Agents shall not use the Web Host Trademarks in any way in connection with its products or services except as permitted by the LA, provided that marketing, sales and training efforts may include references to Web Host and the services provided hereunder, with the prior written consent of Web Host. This EA Agreement does not grant any right to Web Host to use any of the User's or User Agents’ trademarks, and Web Host and Accurence agree that this Agreement does not grant any ownership right to Web Host in the Customer Data (as such term is defined in the LA) or any other proprietary product owned or licensed by User or User Agents.
3) TERMINATION. This Agreement may be terminated:
By Accurence immediately upon notice: if the User or its User Agents fail to perform any of its obligations or there is a material breach by User or its User Agents of any of the provisions of this EA Agreement or the Web Site Access Agreement, and such breach is not remedied within thirty (30) days of notice of such breach, or such other time period as is specifically provided in this EA Agreement; or if the User ceases to carry on its business, commits an act of bankruptcy, becomes insolvent, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or any proceeding is taken with respect to a compromise or arrangement, or to have the User declared bankrupt or wound up, or to have a receiver appointed with respect to any part of its assets; or the LA is terminated in accordance with its terms. By the User, immediately upon notice, if: Accurence or Web Host fails to perform any of its material obligations or there is a material breach by Web Host of any of the provisions of this EA Agreement, and such breach is not remedied within thirty (30) days of notice of such breach; or Accurence or Web Host ceases to carry on its business, commits an act of bankruptcy, becomes insolvent, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or any proceeding is taken with respect to a compromise or arrangement, or to have Accurence declared bankrupt or wound up, or to have a receiver appointed with respect to any part of its assets.
4) ACCEPTABLE USE. On behalf of itself and its User Agents, User agrees to use the Web Site for lawful purposes only and represents and warrants that neither it nor its User Agents will use (or allow use of) the Web Site or the Web Host's services in any way (collectively, "Abuses"):
that is prohibited by any law or regulation or Web Host policy, including the acceptable use policies set forth herein or otherwise provided to User by Web Host; that will disrupt third parties' use or enjoyment of Web Site or the Web Host software or the services, including if its use results in automated, constant and repeated requests for data other than as permitted under this EA Agreement (e.g. denial of service attack), and has a negative effect on Web Host or its systems or network (including abnormal usage that overloads servers on the Web Host network or causes portions of the Web Host network to be blocked); that uses Web Site, the Web Host software, or the services to create, transmit, distribute or store material that violates trademark, copyright, trade secret or other intellectual property laws; violates the privacy, publicity or other personal rights of others; violates export control or data protection laws; impairs the privacy of communications; may be threatening, abusive or hateful; or constitutes or encourages conduct that would constitute a fraud or criminal offense or gives rise to civil liability; that attempts to penetrate Web Host security (which action will also be reported to appropriate law enforcement agencies); and/or that violates Section 1 of this Agreement. If the User or any of its User Agents in any way makes, facilitates, aids or encourages any Abuses, Accurence or Web Host may, in their sole discretion, immediately terminate the use of Web Site or the services or this Agreement with no refunds offered or due to User. On behalf of itself and its User Agents, User acknowledges that the Web Host also reserves the right, in its sole discretion, to suspend or terminate access to Web Site or the services upon notice to the User of any Abuse, and User's or User’s Agent’s failure to promptly correct such Abuse within 48 hours of its receipt of a notice from Web Host. Indirect or attempted violations of this section shall be considered violation of this section. Notwithstanding the foregoing in any of the cases noted above, User acknowledges that if, in Web Host's sole and reasonable judgment, an Abuse will result in or is imminently likely to result in the interruption of Web Host's systems or network or the systems or network of a third party, then Web Host may suspend access to Web Site. Web Host, will, if it is reasonable in the circumstances, cooperate with the User to resolve the Abuse by a method other than suspension and on behalf of itself and its User Agents, User agrees to fully cooperate with all Web Host efforts with regard to this section.
5) LIMITATION OF LIABILITY. ON BEHALF OF ITSELF AND ITS USER AGENTS, THE USER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND THEREFORE ARE NOT SUBJECT TO THE CONTROL OF ACCURENCE OR WEB HOST. ON BEHALF OF ITSELF AND ITS USER AGENTS, THE USER ALSO ACKNOWLEDGES THAT COMPUTER SYSTEMS ARE INHERENTLY UNSTABLE AND MAY MALFUNCTION OR CEASE TO FUNCTION AT ANY TIME WITHOUT WARNING. MALFUNCTION OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDERS OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET MAY MAKE THE SERVICES OR WEB SITE TEMPORARILY OR PERMANENTLY UNAVAILABLE. THE USER AGREES THAT ACCURENCE AND WEB HOST SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES OR WEB SITE IS TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OR CESSATION OF INTERNET SERVICES BY NETWORKS OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO THE DIRECT CONTROL OF ACCURENCE, WEB HOST, OR DUE TO ANY ACCIDENT OR ABUSE BY THE USER. ACCURENCE AND WEB HOST SHALL NOT BE LIABLE TO THE USER FOR ANY BREACH OF SECURITY ON THE NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS ITS ESSENTIAL PURPOSE. NEITHER ACCURENCE, WEB HOST, NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES OR WEB SITE) OR SUPPORTING THE SERVICES OR WEB SITE SHALL BE LIABLE TO THE USER, ANY VENDOR OR ACCURENCE VENDORS, OR TO ANY USER AGENT OR OTHER PARTY CLAIMING BY, THROUGH OR UNDER THE USER, OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT, WEBSITE OR NETWORK DOWNTIME, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, WHICH ARE RELATED TO THIS AGREEMENT AND THE PROVISION OF SERVICES AND OR HEREUNDER, THE QUALITY THEREOF OR INTERRUPTION OF THE SERVICES OR WEB SITE, EVEN IF WEB HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT IN THE CASE OF THE GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY OR WILFUL ACTS OF MISCONDUCT OF WEB HOST AND ONLY TO THE EXTENT CAUSED THEREBY. IN NO EVENT SHALL ACCURENCE'S OR WEB HOST'S LIABILITY FOR ANY DAMAGES EXCEED THE AMOUNTS PAID BY USER DURING THE ONE (1) MONTH PRECEDING THE CLAIM, OTHER THAN TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY OR WILFUL ACTS OF MISCONDUCT OF ACCURENCE OR WEB HOST, RESPECTIVELY. SUCH DAMAGES SHALL BE THE FULL EXTENT OF LIABILITY OF ACCURENCE AND WEB HOST UNDER THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY SUCH LEGAL OR EQUITABLE CLAIM OR ACTION MAY BE ASSERTED AGAINST WEB HOST, AND SHALL CONSTITUTE THE USER'S SOLE REMEDY. ON BEHALF OF ITSELF AND ITS USER AGENTS, THE USER ACKNOWLEDGES AND AGREES THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. NOT ALL JURISDICTIONS PERMIT SUCH LIMITATIONS OF LIABILITY. IF THE USER'S OR USER’S AGENT’S JURISDICTION DOES NOT PERMIT THESE LIMITATIONS, THEY WILL NOT APPLY. THE USER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ACCURENCE OR WEB HOST. NOT WITHSTANDING THE FOREGOING, ON BEHALF OF ITSELF AND ITS USER AGENTS, THE USER AGREES TO INDEMNIFY ACCURENCE AND WEB HOST, IN ACCORDANCE WITH THE PROVISIONS HEREIN, FROM THIRD PARTY CLAIMS RESULTING FROM ACTS OR OMISSIONS OF THE USER OR ANY USER’S AGENT THAT ARE NEGLIGENT, GROSSLY NEGLIGENT, RECKLESS OR WILFUL.
6) ACCURENCE INDEMNITY. Subject to Section 5 and to the following paragraph, Accurence will defend the User and duly authorized User’s Agent against any third party claims against the User or User’s Agent:
with respect to, arising from or in connection with any breach of any representation, warranty or covenant set forth in this Agreement by Accurence or Web Host; or that alleges that the Web Host software infringes such party's copyright or trademark rights, to the extent Web Host similarly indemnifies Accurence. On behalf of itself and its User Agents, User acknowledges that in the event of a claim with respect to (b) hereof, the Web Host or Accurence may at its option and sole expense: (i) procure for the User the right to continue to use the Web Site or Accurence software without such claimed infringement, or (ii) take actions to eliminate such claimed infringement so long as such actions do not degrade Web Host's or Accurence's performance. If such infringement cannot be reasonably settled, corrected or avoided within thirty days of the receipt of the claim, the User may terminate this Agreement pursuant to the provisions hereof User acknowledges that the Web Host and Accurence shall not have any liability or obligation in relation to any infringement except as specifically set out herein.
7) USER INDEMNITY. Subject to Section 5, with respect to any use of Web Site by User or any User Agent, the User agrees to indemnify, defend and hold Accurence, Web Host, and their respective affiliates, customers, directors, officers, shareholders, employees, agents, representatives, successors and permitted assigns, harmless from and against any and all claims, suits, actions, proceedings, damages, costs, liabilities, losses, fines, penalties, and expenses (including, but not limited to, reasonable legal fees) (collectively, "Losses") resulting from:
allegations that the User or User’s Agent data or its use infringes or misappropriates any intellectual property rights of a third party; allegations that the User or User’s Agent data contains defamatory, libelous, slanderous, obscene or pornographic materials, or violate a third party's rights of privacy or publicity; allegations arising from a claim by the User's or User’s Agent’s customer relating to the provision of the services or the Web Site; or any use of the Web Host software and/or any modifications made thereto by, or on behalf of User or User’s Agent, including without limitation any interfaces developed between Web Site and any third party product.
8) LIMITED PURPOSE. The Accurence processing system, and all related Accurence information, software, forms, and tools such as Smart Forms (as they exist now or in the future, collectively the "System") is intended by Accurence, and accepted by the User, on behalf of itself and any User’s Agent, merely a tool to assist User or User’s Agent in compiling a list of proposed actions with respect to a proposed repair or otherwise performing its own functions (collectively "Scope"). Without limiting the foregoing, the System does not cover all property inspection items, situations, measurements, calculations, labor, material, laws (including without limitation municipal, state or federal statutes, ordinances and regulations, department of insurance regulations, building codes), building science concepts or best practices, insurance carrier regulations, policies, suggested and accepted best practices in an industry or association or governing body, etc. The System has been approved by Customer to assist the User or User’s Agent, but is not intended to be, and Accurence makes no representation or warranty that it functions as, a complete Scope or claim processing solution or that it suits User's or User’s Agent’s specific requirements. It is the sole responsibility of User and User’s Agent to: (i) comply with applicable laws, rules, regulations and applicable or Customer policy and training, (ii) review the draft Scope and make all applicable adjustments and supplements to arrive at a final, accurate, and Customer, agrees to all terms and conditions of this Agreement available at Accurence.com/EULA.
9) GENERAL OBLIGATIONS. All Confidential Information relating to or obtained from User or User’s Agent, on the one hand, or Accurence, on the other hand ("Discloser") will be held in strict confidence by the party receiving it ("Recipient") to the same extent and in at least the same manner as the Recipient protects its own confidential information (and in no event with less than reasonable care). No Recipient will disclose, publish, release, transfer or otherwise make available Confidential Information of, or obtained from, the Discloser in any form to, or for the use or benefit of, any person or entity without the Discloser’s consent. No Recipient will use the Discloser’s Confidential Information except for purposes of fulfilling its obligations and enforcing its rights under this Agreement. Each Recipient may, however, disclose relevant aspects of the Discloser’s Confidential Information to Recipient's officers, directors, agents, professional advisors (collectively, "agents"), or to contractors, subcontractors and agents thereof (collectively, "Second Recipients") to the extent that such disclosure is reasonably necessary for the performance of Recipient's duties and obligations or the determination, preservation or exercise of its rights and remedies under this Agreement; provided, however, that (a) the Second Recipient is advised by Recipient in writing of the obligations under this Agreement, (b) the Second Recipient agrees in writing in form acceptable to the Discloser to comply with such obligations, and further provided that Recipient remains responsible for enforcement of the obligations under this Agreement with respect to Second Recipient. Nothing in this Agreement limits the ability of a Recipient or Second Recipient in possession of the Confidential Information of the Discloser from disclosing such Confidential Information, and the Recipient or Second Recipient will have no liability for such disclosure, to the extent such disclosure: (a) is required to be made pursuant to Law, government authority, duly authorized subpoena or court order, whereupon the Recipient or Second Recipient will provide prompt notice to the Discloser and give Discloser an opportunity to respond prior to such disclosure; (b) is made to a court or other tribunal in connection with the enforcement of the Recipient’s or Second Recipient’s rights under this Agreement; or (c) is approved by the Discloser. User shall secure written agreement of each User’s Agent to the terms of this Section 9 and shall enforce performance thereof by its User Agents.
10) UNAUTHORIZED ACTS. Without limiting either Party’s rights in respect of a breach of this Section, each Recipient will:
promptly notify the Discloser of any unauthorized possession, use or knowledge, or attempt thereof, of the Discloser's Confidential Information by Recipient, and Second Recipient, or their respective agents, that may become known to Recipient; promptly furnish to the Discloser full details of the unauthorized possession, use or knowledge, or attempt thereof, and assist the Discloser in investigating or preventing the recurrence of any unauthorized possession, use or knowledge, or attempt thereof, of Discloser's Confidential Information; cooperate with the Discloser, in any litigation and investigation against third parties reasonably deemed necessary by the Discloser to protect its proprietary rights (provided that the foregoing shall not be construed as requiring Recipient to waive its rights with respect to attorney-client privilege or under rules of procedure regarding discovery, nor as to waiving objections Recipient may have as to the extent of Discloser's proprietary rights); and promptly use its best efforts to prevent a recurrence of any such unauthorized possession, use or knowledge, or attempt thereof, of Discloser's Confidential Information. User shall secure written agreement of each User’s Agent to the terms of this Section 10 and shall enforce performance thereof by its User Agents. Each party will bear the cost it incurs as a result of compliance with this Section.
11) DEFINITIONS. The following terms shall have the meaning stated in this EULA:
"Intellectual Property Rights" means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.
"Web Site" means the internet web site(s) operated by or on behalf of Accurence through which Accurence will make the Accurence services available for the benefit of the User as well as applications such as smart phone applications. As of the Effective Date, the Web Site is "SA.Accurence.com," and the smart phone application is available from the Apple Store for approved iOS devices, and Accurence reserves the right to designate, at its sole discretion and from time to time, other or additional web sites or addresses.
"Web Host" means any party or parties designated by Accurence (which may include Accurence) to host the Web Site.
"Accurence Data" means any and all non-publicly available (i) data and information, and derivatives thereof, that is provided or submitted by Accurence to a User or User’s Agent as to Accurence's prospective or actual customers; and (ii) data and information, and derivatives thereof, regarding Accurence or its prospective or actual insurance clients that is obtained, generated, developed, collected, processed or produced by User or User’s Agent in connection with this Agreement, including without limitation anonymized data under Section 5.1.2, reports, service level data, patterns of service requirements and other data and information with respect to the businesses, operations, facilities, clients, products, services, assets and finances of Accurence and its suppliers or clients.
"Confidential Information" of a Party means all information and documentation of that Party, whether disclosed to or accessed by the other Party in connection with this Agreement, including: (i) with respect to the User, all data of the User and all information of the User or their customers, suppliers, contractors and other third parties doing business with the User; (ii) with respect to Accurence, all data of Accurence (excluding Work Product) and all information of Accurence or its customers (excluding User, User Agents and their respective Affiliates and their respective customers), suppliers, contractors and other third parties doing business with Accurence; (iii) with respect to both Parties, the terms of this Agreement; (iv) any information developed by reference to or use of User or Accurence’s Confidential Information; and (v) such Party's Data, as further defined herein; provided, however, that except to the extent otherwise provided by Law, the term "Confidential Information" will not include information that (a) is independently developed by the Recipient, as demonstrated by the Recipient’s written records, without reference to the Confidential Information of the Discloser; (b) is or becomes publicly known (other than through unauthorized disclosure); (c) is already known by the Recipient at the time of disclosure, as demonstrated by the Recipient’s written records; or (d) is rightfully received by a Recipient free of any obligation of confidentiality.
"User Data" means any and all non-publicly available (i) data and information, and derivatives thereof, that is provided or submitted by User to Accurence by or on behalf of User or their prospective or actual respective customers; and (ii) data and information, and derivatives thereof, regarding User or their prospective or actual clients that is obtained, generated, developed, collected, processed or produced by Accurence in connection with this Agreement, including reports, service level data, patterns of service requirements and other data and information with respect to the businesses, operations, facilities, clients, products, services, assets and finances of Customer or their respective suppliers or clients.