This End User License Agreement (this “Agreement”) is a legal agreement between ProsPrice, LLC (“ProsPrice”), a Georgia corporation, and you the End User Licensee (“Licensee”).
WHEREAS, PROSPRICE is in the business of developing a pricing system for the home service industry such as painters, carpenters, flooring, residential construction, hvac, plumbing, electrical, etc., and PROSPRICE has developed an Application (as hereinafter defined) to assist with using PROSPRICE ’s pricing system; and
WHEREAS, Licensee desires to Use (as hereinafter defined) PROSPRICE ’s Application in the ordinary course of its business to estimate and present suggested pricing for their services, developed by PROSPRICE to Licensee’s customers; and
WHEREAS, PROSPRICE desires to grant Licensee and Licensee desires to accept from PROSPRICE a license to Use PROSPRICE ’s Application pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, for and in consideration of the covenants herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1 Application. The Application shall be PricePros Application.
1.2 Authorized Users. “Authorized Users” shall mean those Users who (a) have been authorized by Licensee to access and Use the Application for data analytics, sales and marketing of the pricing menu developed for Licensee by PROSPRICE , and/or training and education purposes; (b) have complied with any registration requirements reasonably requested by PROSPRICE ; and (c) have acknowledged, where required, the terms and conditions applicable to the Application. Only current employees and independent contractors of Licensee are eligible to be an Authorized User.
1.3 Confidential Information. “Confidential Information” shall mean trade secrets and all financial, technical and other information, including all copies thereof (including, without limitation, proposals, business plans, financial information, customer and prospect lists and information, personnel information and contract information, pricing information, assets, rights, properties, projects, research, development, methods of operation, software, trade secrets, inventions, discoveries, know-how and other intellectual property or other business documents) that may be furnished or disclosed by either party and all memoranda, notes, reports, documents, and other media containing Confidential Information, as well as any copies and extracts of Confidential Information and any computer-generated studies and data containing Confidential Information prepared in connection with the Use of the Application, except such information that
(i) is known on a non-confidential basis prior to the receiving party’s first receipt of such information,
(ii) is generally known to the public prior to its receipt, or
(iii) after receipt, becomes available to the public other than as a result of a disclosure by the receiving party. In addition to the foregoing, Confidential Information of PROSPRICE shall include:
(i) the terms of this Agreement,
(ii) the software, technology, ideas, formula, know-how, Specifications (as hereinafter defined), procedures, algorithms and trade secrets embodied in or relating to the Application, technical documentation, solution methodology, User instructions and other deliverables (including the developments and adaptations to the Application).
1.4 Intellectual Property Rights. “Intellectual Property Rights” shall mean all intellectual property rights and industrial property rights (throughout the world, in all media, now existing or created in the future, for all versions and elements, in all languages, and for the entire duration of such rights) arising under statutory or common law, contract, or otherwise, and whether or not perfected, including all (a) patents, reissues of patents and, reexamined patents, and patent applications (whenever filed and wherever issued, including without limitation, continuations, continuations-in-part, substitutes, and divisions of such applications and all priority rights resulting from such applications) now existing, hereafter filed, issued, or acquired, invention disclosures and inventor certificates;
(b) rights associated with works of authorship including copyrights, moral rights, copyright applications, copyright registrations, synchronization rights, mask work rights, mask work applications, mask work registrations; (c) rights associated with registered and unregistered trademarks, service marks, trade names, internet domain names, logos, trade dress, any other indications of origin and the applications for registration and registrations thereof; (d) rights associated to registered or unregistered industrial designs, ideas for forms and shapes and the applications for registration and registrations thereof, (e) rights relating to the protection of trade secrets and confidential information; and (f) rights analogous to those in this definition and any and all other proprietary rights relating to intangible property.
1.5 Use. “Use” means to load, execute, access, employ, utilize, store, or display the Application consistent with the terms of this Agreement. Licensee shall not use the Application for any illegal or unlawful purpose; in a manner that violates the rights of others, such as in a manner that infringes on any Intellectual Property Rights or violates any privacy rights of a third-party.
2. Grant of License.
2.1 Grant of License. In consideration of the payments set forth herein below and subject to Licensee’s compliance with the terms and conditions hereof, PROSPRICE hereby grants Licensee a limited, non-exclusive, non-transferable, worldwide, license for Licensee’s Authorized Users to Use the Application consistent with the terms of this Agreement. The maximum number of Authorized Users licensed to Use the Application is specified in Schedule 2.1 of this Agreement. Licensee shall promptly provide written notice to PROSPRICE if the number of Authorized Users exceeds such maximum number.
2.2 License for Third-Party Provider. The Application requires a third-party merchant provider to process and accept credit card payments. PROSPRICE hereby grants Licensee a limited, non-exclusive, non-transferable, worldwide, sublicense for Licensee’s Authorized Users to process and accept credit card payments through the Application; provided however, Licensee shall be subject to any restrictions or terms and conditions imposed by such third-party merchant provider from time to time in addition to any terms and conditions set forth herein. PROSPRICE makes no warranties or representations regarding the third-party merchant provider or its operation.
3. Term and Termination.
3.1 Term. This Agreement and the license granted hereunder shall become effective as of the date of the first financial transaction from Licensee to PROSPRICE and shall continue indefinitely unless terminated pursuant to the terms of this Section 3.
3.2 Termination for Cause. PROSPRICE may terminate this agreement FOR CAUSE immediately upon written notice to Licensee upon the happening of the following:
i. Licensee’s failure to pay the License Fee or other compensation due PROSPRICE from Licensee after ten (10) days from the date PROSPRICE gives written notice of non-payment to Licensee;
ii. If Licensee makes an assignment for the benefit of a creditor, sells or substantially reduces all of its assets, discontinues its business, files a voluntary petition in bankruptcy or becomes subject to an involuntary petition in bankruptcy, or has an order for winding-up entered against it by a court of competent jurisdiction; or
iii. Any other breach of the terms of this Agreement by Licensee which remains uncured for fifteen (15) days after notice of such violation is provided by PROSPRICE to Licensee.
3.3 Termination Without Cause. Either party may terminate this Agreement WITHOUT CAUSE upon thirty (30) day’s prior written notice to the other party.
3.4 Effect of Termination. Upon termination of this Agreement, whether for cause or otherwise as herein above provided, neither party shall have any further obligation hereunder except the following:
i. The parties shall immediately return or destroy any and all Confidential Information that belongs to the other party in said party’s possession or control pursuant to this Agreement;
ii. Licensee shall immediately stop its Use of the Application for any purpose whatsoever;
iii. Licensee shall pay PROSPRICE any sums or License Fees outstanding or that have accrued prior to the termination of this Agreement; provided however, Licensee shall not be entitled to any refund or return of any payments made by Licensee to PROSPRICE prior to the termination of this Agreement;
iv. Any obligation accruing prior to the date of termination shall not be prejudiced by such termination; and
v. Sections 3, 4, 5, 8, 9 and 11 shall survive the termination of this Agreement.
4. Intellectual Property.
4.1 Ownership of Intellectual Property. PROSPRICE shall retain the exclusive ownership of all worldwide Intellectual Property Rights in and to the Application, and all rights with respect to the Application not expressly granted to Licensee in this Agreement are expressly reserved for PROSPRICE.
4.2 Prohibition on Licensee’s Use. Licensee shall not attempt to disassemble, decompile, reverse engineer or otherwise duplicate or exploit the Application without PROSPRICE ’s prior written consent or as otherwise permitted by the law.
4.3 PROSPRICE ’s Trademarks. Licensee shall include, and shall under no circumstances remove, PROSPRICE ’s copyright, trademark, service mark, or other proprietary notices on or in the Application. The inclusion of PROSPRICE ’s copyright notice on any portion of the Application shall not cause or be construed to cause it to be a published work. Except for the foregoing, Licensee shall not use any of PROSPRICE ’s trade names, trademarks, service marks or other designation(s) for any purpose without express written permission by PROSPRICE.
4.4 Infringement. PROSPRICE shall have sole responsibility for taking such actions which it determines are reasonably necessary or desirable in its sole discretion in connection with any infringement or alleged infringement by a third party of any portion of the Application. Licensee shall not take any action in response to any infringement or alleged infringement of the application without the prior written consent of PROSPRICE . Licensee agrees to cooperate with and assist PROSPRICE by taking whatever action which PROSPRICE determined to be reasonably necessary or desirable, at PROSPRICE ’s cost and expense.
5. Confidentiality.
5.1 Duty of Confidentiality. The parties agree that during the Term of this Agreement and for a period of three (3) years following the termination of this Agreement for any reason, neither party shall directly or indirectly, divulge or make use of any Confidential Information of the other party other than in the performance of said party’s duties under this Agreement. This Agreement does not limit the remedies available to either party under common or statutory law as to trade secrets or other forms of confidential information, which may impose longer duties of nondisclosure. Neither party shall disclose to any third party any such Confidential Information without the prior written consent of the other party. Confidential Information need not be marked proprietary or confidential in order to be protected under this Agreement. The parties agree to use the same degree of care the parties use for their own Confidential Information, but in no event shall either party use less than a reasonable degree of care to protect the Confidential Information.
5.2 Right to Injunctive Relief. Each party agrees that any breach of this Section 5 will cause irreparable harm to the non-breaching party, that legal damages arising from a breach by the breaching party would be difficult to estimate, and that a remedy at law alone would not adequately compensate the non-breaching party for such breach. Accordingly, the parties agree, that in the event of a breach of this Section, in addition to any legal damages or other remedies which the non-breaching party may have under this Agreement, the non-breaching party shall be entitled to injunctive relief as a matter of right in any court of competent jurisdiction, in equity or otherwise, to enforce the specific performance of the obligations under this Section and prevent further injury.
6. Support. PROSPRICE is not responsible for any support or operational services with respect to the Application except for those specified in Schedule 6.
7. Fees.
7.1 License Fee. Licensee will pay PROSPRICE a monthly subscription to access and use the application service and can cancel at anytime.
7.2 Taxes. The License Fee does not include any applicable sales, use, value added or other excise tax. Licensee shall pay for all such taxes as a result of this Agreement or amounts payable hereunder (but not any taxes based upon PROSPRICE ’s gross revenues or net income). All payments and amounts due hereunder shall be paid without deduction, set-off or counter claim, free and clear of any restrictions or conditions, and without deduction for any taxes, levies, imposts, duties, fees, deductions, withholdings or other governmental charges. If Licensee is claiming sales or use tax exemption, a certified tax-exempt certificate that effectively exempts PROSPRICE from such tax must be attached to this Agreement or submitted by Licensee within ten (10) days hereof.
7.3 Interest and Fees. If Licensee fails to pay the License Fee when due, PROSPRICE will not charge interest, instead the PROSPRICE application will be turned off immediately and not reinstated until license fees have been paid.
8. Warranties and Representations.
8.1 Warranty. PROSPRICE warrants that the Application will perform substantially in compliance with the specifications set forth on Schedule 8.1 (the “Specifications”). If during the term of this Agreement, Licensee notifies PROSPRICE that the Application fails to substantially conform to the Specifications, then at PROSPRICE ’s option and as Licensee’s sole remedy, PROSPRICE will repair or replace such Application so that it substantially complies with the Specifications or, if it is unable to do so after reasonable efforts, PROSPRICE will refund all amounts paid by Licensee under this Agreement for such Application during the time that the Application is non-conforming. Licensee assumes full responsibility for: (i) its selection of the Application as appropriate for Licensee’s requirements and (ii) taking appropriate measures to prevent loss of data from Licensee’s use of the Application. PROSPRICE does not warrant that the operation of the Application will meet Licensee’s requirements, that Licensee will be able to achieve any particular results from Use of the Application, or that the Application will operate without interruption or free from error.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROSPRICE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN PROSPRICE, ITS AGENTS OR ITS EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9. Compliance with Laws. At all times while Licensee is Using the Application, Licensee shall comply with all applicable laws, rules and regulations, and Licensee will defend and hold harmless PROSPRICE for any liability, fines, damages, costs, or other loss resulting from Licensee’s violation of any federal, state, or local law, rule or regulation. Furthermore, Licensee understands and agrees that access and Use of the Application from outside the United States may constitute export of technology and technical data that may implicate export regulations and/or require an export license. Licensee shall comply with all applicable export and import control laws and regulations in its Use of the Application, and, in particular, Licensee shall not export or re-export the Application without all required United States and foreign government licenses and permits.
10. Relationship of the Parties. The relationship between the parties are that of independent contractors. The existence of this Agreement shall not create an association, agency, joint venture, franchise or partnership between PROSPRICE and Licensee or otherwise impose any liability attributable to such a relationship upon either PROSPRICE or Licensee. Neither party shall have the authority to act on behalf of the other party or to bind the other party in any way whatsoever.
11. Indemnification; Limitation of Liability.
11.1 Indemnification by PROSPRICE. PROSPRICE shall indemnify and hold harmless Licensee and its principals, officers, directors, agents, Users, and employees (“Licensee Indemnified Parties”), and at PROSPRICE ’s option, either defend Licensee Indemnified Parties or pay their attorneys’ fees and court costs, from any loss, cost, damage or expense incurred by Licensee that is finally awarded by a court of law to any third-party as a result of a claim alleging that the Application infringes or misappropriates a United States patent, copyright, trademark, or trade secret of a third-party, solely provided such alleged infringement or misappropriation does not arise from: (i) a modification of the Application by Licensee; (ii) the combination of the Application with any other application, process, hardware, software, data, or functionality by Licensee; (iii) any data or content originated by Licensee that is communicated using the Application; or (iv) any use of the Application by Licensee in a manner inconsistent with any documentation or instructions provided by PROSPRICE or otherwise in breach of this Agreement.
11.2 Indemnification by Licensee. Licensee will indemnify, defend and hold harmless PROSPRICE and its shareholders, directors, officers, employees and agents from and against any losses, costs, damages or expenses (including reasonable attorneys’ fees) resulting from any claims, suits or actions by third-parties arising from or in connection with Licensee’s actions or omissions, Licensee’s breach of this Agreement, or Licensee’s Use of the Application.
11.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, ANY LOST PROFITS (HOWEVER ARISING, WHETHER UNDER CONTRACT, STRICT LIABILITY, OR TORT, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
12. Miscellaneous.
12.1 Incorporation of Schedules. All schedules and exhibits attached to this Agreement are expressly incorporated herein by reference.
12.2 Notices. Any notice, request, election, or other communication required or permitted to be given by any party under any provision of this Agreement shall be in writing and sent in person, by nationally recognized overnight courier or by United States certified mail, in accordance with the parties’ contact information exchanged at the time of sign up, or to such other contact information as any party shall designate upon written notice to the other party. Notice provided (i) by hand delivery shall be effective upon the next business day, (ii) by nationally recognized overnight courier upon the business day following the scheduled delivery date, and (iii) by United States certified mail upon the third business day after deposit.
12.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and there are no representations, warranties, agreements, undertakings, or conditions, express or implied, except as set forth herein. No amendments or variations of the terms and conditions of this Agreement shall be valid unless in writing and signed by both parties to this Agreement.
12.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and shall be duly executed and effective upon the Effective Date. The exchange of a fully executed Agreement (in counterparts or otherwise) shall be sufficient to bind the parties to the terms and conditions of this Agreement.
12.5 Severability. Every provision of this Agreement is intended to be severable, and, if any term or provision is determined to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this Agreement.
12.6 Successors and Assigns. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors, legal representatives and assigns; provided however, that neither this Agreement nor any rights or obligations hereunder may be assigned by either party without the prior written consent of the other party.
12.7 Non-Waiver. No breach of any provision of this Agreement can be waived unless done so expressly and in writing. An express written waiver of any one breach of this Agreement shall not be deemed a waiver of any other breach of this Agreement.
12.8 Applicable Law. This Agreement shall be construed in accordance with the laws of the State of Georgia. The parties hereby submit and irrevocably consent to venue in and the exclusive jurisdiction of courts located within Whitfield County, Georgia, United States of America and irrevocably agree that all actions or proceedings relating to this Agreement shall be litigated in such courts, and each of the parties waives any objection which it may have based on improper venue or forum non convenient to the conduct of any such action or proceeding in such court.
12.9 Captions. The captions and other headings in this Agreement are inserted solely as a matter of convenience and for reference and shall not be used as a part of this Agreement or in construing this Agreement.
12.10 Further Assurances. Each party shall take such action (including, without limitation, the execution, acknowledgment and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year of the signup date. The signup date is the day and year of the first financial transaction between Licensee and PROSPRICE for use of the Application.
Schedule 2.1
Authorized Users
Schedule 8
Specifications
1. Service Level Agreement
1.1 Subject to the terms of this Schedule 8, the Hosted Services will be available 99% of the Scheduled Uptime Minutes, measured on a monthly basis (the “SLA Commitment”). If PROSPRICE fails to meet the SLA Commitment, Licensee will be eligible for a credit (an “SLA Credit”) calculated as set out below.
1.2 PROSPRICE will issue SLA Credits to Licensee, as applicable, as follows:
(a) Within 60 days of the end of the applicable month, Licensee must note the SLA failure and request a credit in writing (email suffices), providing appropriate supporting information.
(b) PROSPRICE will confirm the SLA failure and issue SLA Credits based on the actual Availability Percentage and the credit table set out below.
1.3 All SLA Credits are based upon a monthly calculation of Availability Percentage applied to applicable Amount Subject to Service Level Credits.
(a) SLA Credit Formulation and Table:
Availability Percentage = (Scheduled Uptime Minutes-Unscheduled Outage Minutes)/(Scheduled Uptime Minutes)
- Availability Percentage 98% to <99% -> SLA Credit Percentage: 10%
- Availability Percentage below 98% -> SLA Credit Percentage: 25%
2. SLA Definitions:
(a) “Amount Subject to Service Level Credits” means the monthly amount due (or the calculated pro rata equivalent) for the month subject to the SLA Commitment.
(b) “Availability Percentage” means that percentage of time, measured monthly, calculated in accordance with the formula set out above.
(c) “Normal Business Hours” means M-F 5:00am Eastern US time – 7:00pm Pacific US time (excluding US bank holidays).
(d) “Scheduled Uptime Minutes” means the total minutes during Normal Business Hours in the applicable month.
(e) “Unscheduled Outage Minutes” means minutes during Normal Business Hours during which PROSPRICE does not meet the SLA Commitment for reasons other than scheduled maintenance or due to a Force Majeure event.
3. General Rules with respect to the SLA Commitment:
(a) Hosted Services will be deemed available unless: (1) a User gets an error response to an attempt to access the Hosted Services during two or more consecutive 90-second intervals, or (2) data stored in the Hosted Services becomes inaccessible.
(b) PROSPRICE will use best efforts to complete all scheduled maintenance outside of Normal Business Hours. Scheduled maintenance during Normal Business Hours must be limited to no more than 30 minutes per incident, and no more than 2 incidents per month. If scheduled maintenance does not meet these criteria, the applicable time will be counted as Unscheduled Outage Minutes.
(c) Emergency maintenance can occur when it will not cause any downtime for the user or when three hours notice has been provided to the Licensee. PROSPRICE will provide maximum practical notice for such maintenance. Licensee’s agreement to such request may not be unreasonably withheld.
(d) The issuance of SLA Credits will be PROSPRICE ’s sole financial obligation with respect to failure to meet the SLA Commitment. Credits are redeemable only against future Hosted Services Fees and have no cash value.
(e) PROSPRICE will not be liable to Licensee, or provide any SLA Credits for any failure to meet the SLA Commitment to the extent that such failure is attributable to the following: (1) acts, omissions or errors of Licensee or a third party, (2) breaches of the Agreement by Licensee, (3) failure of Licensee’s or a User’s software, hardware, systems or connections, or (4) Force Majeure.
