MyTrakLogix Subscription Software & Services Agreement By Mindstorm Media Inc,.
IMPORTANT NOTICE: PLEASE READ THRU THIS AGREEMENT THOUROGHLY BEFORE USING THIS SERVICE.
BY SUBSCRIBING AND USING THE SOFTWARE SUBSCRIPTION (HEREINAFTER CALLED “SERVICE”) , CLIENT ACKNOWLEDGES AND 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 Mindstorm Media Inc, Inc., a NORTH CAROLINA corporation (AppraisalPro-PRODUCT) and the entity or individual agreeing to these terms (CLIENT).
- WEB BASED SERVICE. This agreement provides CLIENT access to the AppraisalPro Appraiser SOFTWARE online subscription service (Service).
- USE OF SERVICES.
- AppraisalProResponsibilities. AppraisalPro must (i) use commercially reasonable efforts to protect the CLIENT Data from unauthorized access, and (ii) provide CLIENT support for the Services.
- CLIENT Responsibilities. CLIENT (i) is responsible for CLIENT Data (defined below), (ii) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify MYTRAKLOGIX promptly of any such unauthorized access, and (iii) may use the Services only in accordance with its user guide and applicable law.
- Restrictions. CLIENT may not (i) sell, resell, rent or lease the Services, (ii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Services, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks.
- Access. CLIENT may allow its employees and contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of CLIENT. CLIENT is responsible for the compliance with this agreement by its employees and contractors.
- SUBSCRIPTION FEE. CLIENT must pay the monthly applicable subscription fee for the Service. MYTRAKLOGIX reserves the right to change its subscription fee at any time, but will provide at least 30 days’ notice of any changes. Credit cards will be billed for the Service fee. MYTRAKLOGIX reserves the right to suspend or terminate CLIENT’s account if credit card charges are denied. By entering credit card information, CLIENT is authorizing MYTRAKLOGIX to charge the entered card the monthly Service fee. CLIENT is responsible for sales, use and other similar taxes, and for updating its credit card and email address within the Service.
- DISCLAIMER. MYTRAKLOGIX SERVICES ARE PROVIDED ON AN AS-IS BASIS. MYTRAKLOGIX 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. MYTRAKLOGIX DOES NOT WARRANT THAT THE SERVICE CANNOT BE HACKED.
- Definition of Confidential Information. Confidential Information means all nonpublic information disclosed by MYTRAKLOGIX to CLIENT, whether orally, visually or in writing (Confidential Information). MYTRAKLOGIX’s Confidential Information includes without limitation the Service and each of its parts (including without limitation the Service user interface design and layout).
- Protection of Confidential Information. CLIENT may not disclose to unauthorized parties or use any Confidential Information of MYTRAKLOGIX for any purpose outside the scope of this agreement. CLIENT must limit access to Confidential Information to those of its contractors and employees who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with CLIENT no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to MYTRAKLOGIX, (ii) was known to CLIENT prior to its disclosure by AppraisalPro without breach of any obligation owed to MYTRAKLOGIX, (iii) is received from a third party without breach of any obligation owed to MYTRAKLOGIX, or (iv) was independently developed by CLIENT without use or access to the Confidential Information.
- Disclosure Required by Law. CLIENT may disclose Confidential Information to the extent required by law or court order, but will provide MYTRAKLOGIX with advance notice to seek a protective order.
- PROPRIETARY RIGHTS.
- Reservation of Rights by MYTRAKLOGIX. The software, workflow processes, and other technologies provided by MYTRAKLOGIX as part of the Services are the proprietary property of MYTRAKLOGIX and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with MYAPPRAISALPRO. MYAPPRAISALPRO grants no rights unless expressly provided in this agreement.
- CLIENT Restrictions. CLIENT 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.
- EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
- Exclusion of Certain Damages. MYTRAKLOGIX IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF LOSS OF DATA, DELAY, LOSS OF INFORMATION OR LOSS OF PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- Limitation of Liability. MYTRAKLOGIX’S TOTAL LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CLIENT WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.
- TERM, TERMINATION AND SUSPENSION OF SERVICE.
- Term. This agreement continues month to month after the 30-day free trial period. CLIENT may cancel a subscription at any time but will have access to the Service until their next billing cycle. No partial month refunds are provided.
- 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.
- Suspension of Service for Violations of Law. MYTRAKLOGIX may immediately suspend the Services and remove applicable CLIENT Data if it in good faith believes that, as part of using the Services, CLIENT may have violated a law. AppraisalPro may try to contact CLIENT in advance, but it is not required to do so.
- INDEMNITY. To the extent allowed by applicable law, if any third-party brings a claim against MYTRAKLOGIX related to CLIENT’s acts, omissions, data or information within the Service, CLIENT must defend, indemnify and hold MYTRAKLOGIX 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 AppraisalPro.
10. GOVERNING LAW AND EXCLUSIVE FORUM. This agreement is governed by the State of NORTH CAROLINA, 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 Forsyth County, NORTH CAROLINA. CLIENT 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.
11. 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. CLIENT 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. CLIENT may not transfer or assign this agreement to a third 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.