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Access and Use Agreement
This Access and Use Agreement (this “Agreement”) is made and entered into as per the date and conditions of the Invoice, by and between e2Value®, Inc., a Delaware corporation with an office at 114 Grove St., Office East, Stamford CT 06901 and mailing address of PO Box 3518, Stamford CT 06905 (“e2Value®”) the user party (parties) (the “User” or “you”).
1. Definitions. When used in this Agreement, (a) the term “Cost Engine” shall mean the cost engine used to calculate the replacement value of a home for insurance purposes that is available on the Site, and the results obtained therefrom, (b) the term “Reports” shall mean the results obtained by the User Parties in connection with their use of the Cost Engine, (c) the term “Site” shall mean www.e2Value.com; and (d) the term “User Parties” shall mean the User employees or agents permitted to access and use the Cost Engine.
2. Grant of License. Subject to the terms and conditions contained in this Agreement, e2Value® hereby grants to you and you hereby accept a non-exclusive, non-transferable, revocable license for the User Parties to access and use the Cost Engine on the Site. Except as expressly set forth herein, neither you nor the User Parties shall share or provide access to the Cost Engine or the Reports obtained in connection therewith.
3. Contract Administrator. User shall designate an employee or agent of User to serve as e2Value®’s contact person for all purposes of this Agreement (the “Contract Administrator”). User may remove, substitute or name a new Contract Administrator from time to time by notice to e2Value®. e2Value® may rely entirely on the actions or directions of the Contract Administrator. If at any time User does not have a Contract Administrator in place, then the chief information officer of User shall be deemed the Contract Administrator.
4. User Parties – Password Protection. A password is an identifier that should be kept secret and is used in conjunction with a User id or other account id to verify identification and validate access to the Cost Engine by the User Parties. You shall be responsible for all user ids and passwords under your control and the use of the Cost Engine by the User Parties or any other person gaining access to the Cost Engine through any User Parties. You further agree to notify e2Value® in writing within two (2) business days if any person previously designated as a User Party has ceased to be your employee or agent or has for any other reason ceased to be a User Party. Upon receipt of such notification, or if e2Value® otherwise reasonably believes that any person previously designated as a User Party has for any reason ceased to be a User Party, e2Value® will have the right to take action to prevent such person from accessing and using the Cost Engine (including disabling any user id). e2Value® reserves the right to disable any User ID and block access to the site by any user at anytime without notice.
5. Fees. In consideration of the right to access and use the Cost Engine on the Site, you agree to pay to e2Value® the Fees set forth in the Invoice provided by e2Value®, Inc. All Fees shall be due and payable in accordance with the Invoice. e2Value® reserves the right to change the Fee structure or any Fee under this Agreement from time to time during the term of this Agreement. Notice of revised Fees may be made solely by posting the revised Fee schedule on the Site.
6. Equipment. You understand and agree that you must provide, at your sole cost and expense, all equipment and services (including, where necessary, telephone service and Internet access service) necessary for the User Parties to access the Site and the Cost Engine.
7. Saving/Printing/Copying of Reports. If you or any User Party saves, prints or downloads any Report, you may provide the original or distribute a copy to another person or entity without charge; provided however that you agree not to change or delete any proprietary notices on any Reports saved, printed or downloaded.
8. Confidentiality. You acknowledge and agree that in the course of performing under this Agreement, you will learn confidential, trade secret, and proprietary information concerning e2Value® and its business, programs and procedures (“Confidential Information”) including, but not limited to, the Cost Engine, the Reports, technical information, and any other material or information provided by e2Value® to you or any User Party under this Agreement. Confidential Information shall also include the information described in the following. Such disclosure shall in no way be construed to constitute a license to use the Confidential Information other than as specified herein, nor shall anything herein be deemed by implication or otherwise to convey to you or any User Party any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of e2Value®. You agree to keep the Confidential Information in strict confidence, not to use any Confidential Information for your own purposes or for the benefit of any third party, and not to demonstrate or disclose, directly or indirectly, in any form or manner the Confidential Information to any person or entity other than the User Parties. You shall treat as confidential and safeguard any such Confidential Information in at least the same manner as that in which you safeguard your own confidential or proprietary material or information of like kind. In addition, e2Value® agrees to keep confidential all information obtained through the course of valuation by User Parties pursuant to this Agreement pursuant to the policies set forth in Exhibit A.
9. Indemnity. You agree to defend, indemnify and hold harmless e2Value® from any loss, cost, expense, damage or liability resulting from any improper disclosure of Confidential Information by you or any User Party. You specifically agree that any breach of your confidentiality obligations under this Agreement will result in irreparable injury to e2Value® and e2Value® shall be entitled (without the necessity of posting any bond or establishing the inadequacy of damages as a remedy) to specific performance and injunctive relief to correct and/or enjoin any such breach or threatened breach in addition to all other remedies which might be available.
10. Maintenance Outage. e2Value® may from time to time shut down or disable the Cost Engine for the purposes of maintenance and repair. e2Value® shall have no liability to User or any third party for shutdown or disability of the Site, regardless of the timing, duration or lack of notice of such shutdown or disability.
11. No Representations or Warranties. THE COST ENGINE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, E2VALUE® DOES NOT WARRANT, GUARANTY OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE COST ENGINE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, COMPLETENESS OR OTHERWISE. YOU UNDERSTAND THAT, AS A RESULT OF COMPUTER OR COMMUNICATIONS FAILURES OR OTHER REASONS, THE SITE, THE COST ENGINE AND THE CONTENT CONTAINED THEREIN MAY BE INACCESSIBLE FROM TIME TO TIME WITH OR WITHOUT NOTICE. YOU FURTHER UNDERSTAND THAT THE CONTENT OF THE SITE AND THE COST ENGINE IS SUBJECT TO MODIFICATION OR ELIMINATION OF SELECTED PARTS FROM TIME TO TIME. E2VALUE® CANNOT AND DOES NOT WARRANT AGAINST HUMAN OR MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE COST ENGINE IS ASSUMED BY YOU.
12. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL E2VALUE® BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE COST ENGINE, EVEN IF E2VALUE® HAS BEEN ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF SUCH DAMAGES. E2VALUE®’S SOLE OBLIGATION TO YOU FOR DAMAGES SHALL BE LIMITED TO ALL AMOUNTS PAID BY YOU TO E2VALUE® DURING THE MONTH IN WHICH THE EVENT RESULTING IN A CLAIM FOR DAMAGES OCCURRED.
13. Term and Termination. The term of this Agreement are as described in the Invoice. Thereafter, the term of this Agreement shall be automatically extended for successive renewal terms of one (1) year. Either party may terminate this Agreement at any time, with or without cause, upon ninety (90) days prior written notice to the other party. In the event of any termination hereunder, all Fees paid by you to e2Value® shall be non-refundable. Upon any termination of this Agreement, you and all User Parties shall cease all use of the Cost Engine and shall return to e2Value® all related documentation and any Confidential Information in its possession. Sections 8, 9, 11, 12, 13, 14 and 16 shall survive any termination or expiration of this Agreement.
14. Relationship of the Parties. The relationship of the parties hereto shall be that of independent contractors. Nothing herein shall be construed to create any partnership, joint venture, or similar relationship, or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated herein.
15. Use of Name. e2Value® can name in writing, and otherwise, the other Party or both Parties as business associates in promotional materials and marketing activities.
16. Other Terms and Conditions of Use. The User’s and the User Parties’ access to and use of the Site and the Cost Engine are subject to the Terms and Conditions of Use, the Disclaimer, and the other terms, conditions and limitations posted on the Site from time to time (the “other terms and conditions of use”). You agree to be bound by this Agreement and all such other terms and conditions of use. In the event of any conflict between the terms and conditions of this Agreement and the other terms and conditions of use to which you are bound, the terms and conditions of this Agreement shall prevail.
17. Miscellaneous. This Agreement constitutes the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of e2Value®, Inc. The waiver or failure of e2Value® to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. The rights and remedies of e2Value® set forth in this Agreement are in addition to any rights or remedies e2Value® may otherwise have at law or in equity. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the parties shall modify such provision to the extent necessary to render it valid and the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby. The titles and headings of the Sections in this Agreement are for convenience of reference only, and are not to be considered in constructing the terms and provisions of this Agreement. Any and all notices shall be in writing and shall be delivered by hand or by nationally recognized overnight courier service sent by registered or certified U.S. mail, postage prepaid, return receipt requested, to the parties at the addresses set forth in the first paragraph of this Agreement, in each case to the attention of the party’s Contract Administrator. This Agreement shall be governed by the laws of the State of Connecticut and the United States of America, without regard to the conflict of law principles thereof. The User and the User Parties shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
EXHIBIT A
“Confidential Information” of a party shall include any information not generally known to the trade which gives its holder any advantage over its competitors, and may include without limitation products or services under development, software, hardware, source code, object code, financial information, pricing information, business plans, employee information, production methods and processes, sources of supply, customer lists and/or marketing plans. Any information, which (i) at or prior to the time of disclosure by the disclosing party was generally available to the public through no breach of this Agreement, (ii) was available to the public on a non-confidential basis prior to its disclosure by the disclosing party or (iii) was made available to the public from a third party, provided that such party did not obtain or disseminate such information in breach of any legal obligation, shall not be deemed Confidential Information of either Party for purposes hereof.
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