1. Ownership and License.
- Ownership of Services. he Services are owned by AccuLynx and/or its third-party licensors (certain features may be derived from third-party open source contributors and are subject to additional license terms regarding use of open source code). The Services are protected by U.S. and international copyright law. AccuLynx and its licensors shall retain all title to and interest in the Services, including without limitation all related patent, copyright, trademark, and other intellectual property rights, whether in the source code, the object code, screen displays, logos, promotional materials, or otherwise. No rights are granted to You hereunder other than as expressly set forth herein.
- Grant of License. During the Term (as defined herein) of this Agreement, AccuLynx grants You one nonexclusive, nontransferable, worldwide User license per Order purchased by You for a User (as defined below) to connect to and access the Services pursuant to the terms and conditions of this Agreement.
2. User Authorization and Limitations.Prohibition on Sharing of User Licenses. “User” shall mean an individual You authorize to use the Services, for whom an Order and license to use the Services has been purchased, and to whom you have supplied (or requested AccuLynx to supply) a user identification and password. Users may include without limitation Your owners, employees, consultants, contractors and agents. Users shall not include any third party competitors of AccuLynx. User licenses are for designated Users and may not be shared or used by more than one User, but a User’s license may be reassigned to a new User to replace a former User who You no longer authorize to use the Services. The license or licenses granted herein are purchased as User subscriptions under an Order and You shall not allow the Services to be accessed by more than the number of Users for whom subscriptions have been purchased. Additional User licenses may be added during any 30-day period at the same pricing as that for the pre-existing subscriptions and the term of the additional User licenses shall be coterminous with the expiration of the license Term then in effect. You are responsible for Your User’s use of the Service and compliance with this Agreement.
3. Your Restrictions and Responsibilities.
In using the Services, you shall not (and shall not permit any User, owner, employee, independent contractor, agent, or other third party to):
- copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Services in order to ascertain, derive, or appropriate for any reason or purpose, the object code, source code or source listings for the Services or any other trade secret information or process contained in the Services without the prior express written consent of AccuLynx
- create derivative works based on the Services;
- copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes;
- access the Services in order to build a competitive product or service;
- copy any features, functions or graphics of the Services without the prior express written consent of AccuLynx;.alter or remove any notices, graphics or text contained on or in the Services;
- modify the Services in any form, without the express written consent of AccuLynx. Any modifications you make to the Services will remain the property of AccuLynx and/or its licensor(s);
- make the Services available to any third party other than Users;
- sell, resell, rent or lease the Services or any right to access or use the Services;
- use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious materials, material in violation of third-party privacy rights, or malicious code of any kind;
- interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
- access data not intended for You or log onto a server or account to which You are not authorized to access;
- attempt to probe, scan or test the vulnerability of the AccuLynx’s system or network or to breach any AccuLynx security measures;
- attempt to interfere in any way with the AccuLynx Services, Website, and/or App; and
- attempt to gain unauthorized access to the Services or its related systems or networks
In using the Services, You are responsible for:
- maintaining the security of Your User identifications and passwords, preventing sharing or disclosure of Your User identifications and passwords with unauthorized third parties, and preventing unauthorized access to or use of the Services;
- the results of any unauthorized access or misuse of any of Your User identifications or passwords and for notifying AccuLynx immediately of any such unauthorized access or misuse.
- Users’ compliance with this Agreement;
- the accuracy, quality, and integrity, of the data you submit, process, or use with our Services and the means and bases by which you acquired Your data;
- providing all necessary and required notices and disclosures to any individuals or customers (collectively, “Customers”) whose information you submit or process through our Services
- using the Services only in accordance with this Agreement and applicable laws and government regulations.
4. AccuLynx Trade Secrets.
You acknowledge that the Services and all of its components are AccuLynx trade secrets and that Acculynx derives independent economic value from and has valuable rights in and to such trade secrets not generally being known to third parties. Accordingly, You agree not to (and not to permit any User, owner, employee, independent contractor, agent, or other third party to) disclose such trade secrets without AccuLynx’s prior written consent.
5. Third-Party Materials.
The Services may include or display software, content, data or other materials, including related documentation, that are owned by persons or entities other than AccuLynx and that are provided to You on licensee terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses"). A list of all materials, if any, included in the Services and provided under Third-Party Licenses can be found here:
- Beacon Roofing Supply
- GAF QuickMeasure
- Sales Rabbit
- Home Advisor
- Weather Fusion
- ABC Supply
- Acorn Finance
The applicable Third-Party Licenses, Agreements and Terms (collectively “Terms”) are accessible via links therefrom. You are bound by and shall comply with all Third-Party Terms, and AccuLynx is not responsible for Your and your authorized User’s compliance with all Third-Party Terms or for any activities or responsibilities of any Third Party providers. Any breach by You or your authorized User of any Third-Party Terms is also a breach of this Agreement.
You may order certain third party products and services through the Services provided. Terms and conditions on the sale of such third party goods and services are between you and the third party vendor.
ACCULYNX IS NOT LIABLE FOR ANY THIRD PARTY GOOD OR SERVICES ORDERED BY YOU THOUGH THE SERVICE. ANY ORDER DISPUTES, PRODUCT ORDER DISCREPANCIES, OR OTHER ORDER ISSUES BETWEEN YOU AND SUCH THIRD PARTY PROVIDER WILL BE A MATTER SOLELY BETWEEN YOU AND THE THIRD PARTY PROVIDER.
6. Right to Modify, Suspend, or Discontinue Services.
AccuLynx reserves the right at any time and from time to time to modify, suspend, or discontinue the availability of, temporarily or permanently, the Services (or any part thereof, including any Third-Party Licenses) with or without notice. AccuLynx shall not be liable to You or to any third party for any modification, suspension or discontinuance of the availability of the Services. AccuLynx’s rights under this Agreement include, but are not limited to, the right to temporarily discontinue the availability of the Services on any day in order to implement Services maintenance and upgrades. AccuLynx shall not be liable to You or to any third party for any modification, suspension or discontinuance of the availability of the Services. Notwithstanding the foregoing, AccuLynx will make reasonable efforts to attempt to respond to Your reasonable requests for support services. You may make such requests during normal business hours (central standard time) by utilizing the following help line number: 608-473-3800. AccuLynx reserves the right, at its sole discretion, to change the hours of operation of and/or the method of accessing such help line and makes no representations or warranties with respect to the response time of AccuLynx or the effectiveness of the support services provided, if any.
7. Use and Ownership of Suggestions.
AccuLynx shall have the unrestricted right to use or act upon any suggestion, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Services. AccuLynx shall have, and You hereby grant AccuLynx, a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8. Collection and Use of Your Information.
9. Your Customer Information.
Our Services enable you, among other things, to manage your business transactions and interactions with your Customers. Accordingly, in using or accessing our Services You may enter or process your Customer information through our Services. With respect to any such Customer information, you agree, represent, and warrant that: (A) as between AccuLynx and You, that You are the Controller or Owner of Your Customer Personal Information and that You are the Business that collects that Personal Information as those terms are defined under applicable law; (B) You have the right and obtained all necessary permission and consents to enter or process Customer information on our Services; (C) the Customer information You enter or process on our Services is accurate and correct; and (D) You will provide any necessary or legally required notices or disclosures to Your Customers relating to Your Disclosure or Processing of Customer Personal Information on our Services. To the extent that AccuLynx processes or discloses Your Customer Personal Information, AccuLynx: (a) acts as a service provider or processor as those terms are defined under applicable law and does so strictly in providing our Services to You and in accordance with Your instructions; (b) may only retain, process, use, and/or disclose Customer Personal Information solely to provide the Services to You; (c) is strictly prohibited from retaining, using, and/or disclosing Your Customer Personal Information for any reason or purpose other than providing the Service to You; and (d) does not receive any monetary and/or other valuable consideration for disclosing Your Customer Personal Information to third parties. You are responsible for responding to any and all requests from your Customers relating to their information. If we receive a request from your Customer, we will forward that request to you to the extent we can identify that Customer as Your Customer. In no event, however, will we be responsible for responding or not responding to any requests for information from Your Customer.
10. DISCLAIMER OF WARRANTIES.
BY ACCEPTING THE AGREEMENT, YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING. IF YOU DO NOT AGREE TO THE FOLLOWING THEN DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE ANY PORTION OF THE SOFTWARE:
YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCULYNX EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES SET FORTH IN THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
ACCULYNX MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACCULYNX OR THROUGH OR FROM THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11. LIMITATION OF LIABILITY AND DAMAGE.
BY ACCEPTING THE AGREEMENT, YOU INDICATE THAT YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING. IF YOU DO NOT AGREE TO THE FOLLOWING THEN DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE ANY PORTION OF THE SOFTWARE:
ACCULYNX AND ITS THIRD-PARTY LICENSORS SHALL NOT BE LIABLE FOR, NOR SHALL YOU MAKE ANY CLAIM FOR (WHETHER BASED ON CONTRACT, TORT, STRICT OR STATUTORY LIABILITY, NEGLIGENCE OR OTHERWISE), ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF ACCULYNX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR SAVINGS; LOSS OF USE OF THE SOFTWARE; LOSS OF GOODWILL, DATA OR OTHER INTANGIBLE LOSSES; COST OF CAPITAL; COST OF SUBSTITUTE SERVICES OR FACILITIES; DOWNTIME COSTS OR DAMAGES; AND EXPENSES ARISING OUT OF THIRD-PARTY CLAIMS; ANY OF WHICH RESULT FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN ITS USE OF THE SOFTWARE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF WARRANTIES STATED HEREIN OR THE LIMITATION OF LIABILITY STATED IN THE PRECEDING PROVISIONS, THEN YOU EXPRESSLY AGREE THAT IN NO EVENT WILL ACCULYNX’S LIABILITY FOR ANY CLAIM OR DAMAGES HEREUNDER EXCEED THE LESSER OF: (a) THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM OR (b) $500. NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY IN THIS AGREEMENT, YOU AGREE THAT IN NO EVENT SHALL YOU HAVE OR ASSERT A RIGHT OF SETOFF AGAINST ACCULYNX.
The provisions of this Agreement allocate the risks between You and AccuLynx. AccuLynx’s pricing reflects this allocation of risk and the limitations of liability specified herein.
You agree to indemnify and hold AccuLynx and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party (including without limitation claims for infringement) due to or arising out of data, including Customer information, You submit, post, process, transmit or otherwise make available through the Services, Your use of the Services, Your connection to the Services, Your violation of this Agreement, or Your violation of any rights of another.
13. Right to Audit Compliance.
AccuLynx shall have the right to conduct, or direct an independent accounting firm to conduct, during normal business hours and no more than once during any calendar year, an audit of Your relevant records to verify Your compliance with the terms of this Agreement. This provision does not limit our right to monitor our server logs for accesses made by You or any User, or access using any User identification or password issued to You or to any User, to the Services or any other on-line features offered by AccuLynx or its affiliates, or to investigate any conduct AccuLynx believes may be a breach of the licensing terms or may be otherwise threatening to the integrity of AccuLynx’s products or services
Termination by AccuLynx. AccuLynx may terminate this Agreement or any User licenses granted herein immediately, without the necessity of notice or demand, if: (a) You have breached any material provision of this Agreement; (b) AccuLynx makes a determination that You have become insolvent or are generally unable to pay, or if You have become the subject of any bankruptcy or insolvency proceeding; or (c)You fail to make payments when due. In addition, AccuLynx may terminate this Agreement or any User licenses granted herein upon thirty (30) calendar days written notice, with or without cause.
Access to Services and Data Upon Termination. Upon termination of any User license granted herein, Your right to access and use of the Services shall immediately cease with respect to that User. Upon termination of this Agreement and/or all User licenses granted herein, Your right to access and use of the Services shall immediately cease in its entirety. AccuLynx shall have no obligation to maintain, store or provide any of Your information and data and may delete such data after termination of the Agreement unless you request in writing prior to the effective termination date that we provide that data to you in a mutually agreed upon format, provided, however, that we may charge you a reasonable fee to fulfill that request.
Remedies. Termination of this Agreement or any User license granted herein shall not limit the remedies otherwise available to either party, including injunctive relief.
15. Trademarks and Servicemarks.
The "AccuLynx" and AccuLynx logo trademarks and service marks and other AccuLynx logos and product and service names are trademarks of AccuLynx (the "AccuLynx Marks"). Without the prior written permission of AccuLynx, You agree not to display or use in any manner the AccuLynx Marks.
16. Injunctive Relief.
Each party acknowledges that any violation by that party of its covenants in this Agreement (if any) relating to intellectual property rights, confidential or proprietary information, or trade secrets would result in damage to the other party that is largely intangible but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give the other party the right to a court-ordered injunction or other appropriate order to specifically enforce those covenants. The party against whom any such injunction is entered agrees to pay to the other party any reasonable expenses, including but not limited to attorneys' fees, incurred in obtaining such specific enforcement (in addition to any other relief to which the other party may be entitled).
17. General Provisions.
Attorney's Fees. In the event any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, AccuLynx shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorneys’ fees, incurred thereby.
Compliance with Export and Import Laws. You shall comply with all then-current export and import laws and regulations of the United States and such other government as are applicable to the Services. You hereby certify that You will not directly or indirectly export, re-export, or transship the Services or related information, media, or products in violation of United States laws and regulations.
Assignment; Binding Agreement. You may not assign this Agreement or any User license granted or created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of AccuLynx. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their affiliates, their respective successors and permitted assigns.
Relationship of Parties. The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever. AccuLynx may use Your plain text name to list You as a customer of AccuLynx.
No Third-Party Beneficiaries. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties, their affiliates and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on other persons.
Notice. All notices under this Agreement shall be in writing and shall be delivered to the address notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile, or by e-mail. Notice shall be deemed to have been given upon (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by e-mail. Notices to AccuLynx shall be addressed to the attention of its President. Notices to You will be directed to the most recent contact information that You have provided to AccuLynx in writing.
No Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided to AccuLynx herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity
Severability; Blue-Penciling. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court or interpreted so as best to accomplish the objectives of the original provisions to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
Survival. The obligations of the parties under this Agreement that by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
Changes to this Agreement. We reserve the right to change and amend this Agreement at any time and for any reason and will notify you of any such changes by posting them on our website or relevant Service and updating the Effective Date above. Your continued use of any of the Services after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue using the Services under the new terms, please cease using the Services.
Force Majeure. Except for payment defaults, neither party shall be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by force majeure or any cause beyond its reasonable control, including without limitation labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, utility or transmission failures, pandemic or national or global health crises, war, riot, or governmental action not the fault of the nonperforming party.
Federal Government End Use Provisions. If You are the United States Government or any contractor thereof, all licenses granted hereunder are subject to the following: (i) for acquisition by or on behalf of civilian agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; (ii) for acquisition by or on behalf of units of the Department of Defense (“DOD”), as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-1 through 227.7202-4 of the DOD F.A.R. Supplement and its successors.
Choice of Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Illinois in the United States, without regard to its conflict of laws provisions. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Jurisdiction; Venue. The federal courts of the United States in the Northern District of Illinois, Western Division, and the state courts of the State of Illinois in Winnebago County, Illinois, shall have exclusive jurisdiction and venue to enforce this Agreement or to otherwise adjudicate any dispute arising out of, or relating to, this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise
Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.