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Terms of Service
Read this Terms of Service Carefully.

- By pressing "Agree" and by using the Service, Customer is agreeing to be bound by this Terms of Service Agreement (Agreement).

- If Customer does not agree to this Agreement, then press "Reject." In such case, Customer cannot use the Service.

This Agreement is between Xactware Solutions, Inc., a Delaware corporation (Xactware), and the entity or individual agreeing to these terms (Customer).

1) DATA MANAGEMENT SOFTWARE SERVICE. This Agreement provides Customer access to a proprietary data management software service and the mobile app, described at: http://www.propertypreswizard.com.

Xactware will provide this functionality through the Internet and the mobile app under the terms below (collectively, the Service). This Agreement contemplates one or more transaction orders for the Service, which orders are governed by the terms of this Agreement. Customer 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 Customer. Customer is responsible for the compliance with this Agreement by its employees and contractors. Please review the Xactware Privacy Policy for the Services, available at https://propertypreswizard.com/ppw/privacy-policy/index.html, which describes how Xactware collects, uses, and discloses certain information.

2) THE SERVICE.

a). Customer Data (this section only applies if Customer is paying Xactware for the Service). The Service may enable Customer and others to upload, share, or publish materials (User Generated Content). In doing so, Customer grants to Xactware, and respective service providers a perpetual, non-exclusive, royalty-free, sub-licensable, and transferable right to use, display, copy, modify, disclose and create derivative works of such User Generated Content. Such User Generated Content may include non-public personal information as that term is defined in the Gramm-Leach-Bliley Act of 1999, 15, U.S.C., Section 6801, as amended from time to time (hereinafter "Customer Data"). Customer grants Xactware a license to use the Customer Data solely for purposes of performing under this Agreement. During the term of this Agreement, Customer may extract some of the data using the export and reporting features within the Service. Upon request and at Customer's expense, where technologically feasible, Xactware will send Customer the requested data in a readily accessible format. If you are a non-paying Customer, then contact the Customer that invited you to the Service regarding getting any files uploaded to the Service. Customer represents and warrants to Xactware that it has all the necessary rights and permissions to upload, store, transfer, and process the Customer Data within the Service, and that by agreeing to and uploading, processing and storing any Customer Data it is not in violation of and has not violated any agreement to which it is bound, and that it is not in violation of any applicable law, ordinance, regulation, or code.

b). Anonymous Data. Xactware shall own all assignment, estimate, inspection, job and/or project data from the Services, from which the assignee, assignor, and non-public client-specific information has been removed, which were created and/or extracted using the Services. Such data shall be referred to as "Anonymous Data."

c). Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Xactware promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's Support Manual and applicable law. Furthermore, Customer will not: (i) perform or attempt to perform automated collection of information from the Service; (ii) de-compile, reverse engineer, disassemble, modify, or create derivative works of the Service; and (iii) use the Service other than in accordance with this Agreement and applicable law.

d). Warranty for Submissions. By uploading and providing any data, files, images and other information, Customers represents and warrants that Customer is entitled to submit the such data and that it is accurate and truthful, and not misleading, confidential, or provided in violation of any contractual restriction or other third party right.

e). Xactware Responsibilities. Xactware must provide customer support for the Service under the terms of its Support Policy which is located at www.propertypreswizard.com/support-policy, and is incorporated into this Agreement for all purposes. Xactware may change this policy, but during any paid term Xactware will provide commercially reasonable efforts to notify Customer of any significant changes during a paid term. When Customer provides permission for Xactware to remotely access its systems, Xactware is not liable for any damage or loss as part of that remote session.

3) PAYMENT TERMS. Customer must pay all fees as specified on the order (unless another customer is paying for the Service under an order on Customer's behalf), but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes.

a). Credit Card Payments (if applicable). Customer must pay for the Services online (unless the parties agree otherwise), and Xactware may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed. CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING Xactware WITH A VALID CREDIT CARD FOR PAYMENT WHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different credit card or use a bank account or if there is a change in Customer's credit card status, Customer must change its information online in the account within the Service. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, Xactware may suspend, terminate, or both (without liability) Customer's use of the Services upon 5 day's notice.

3) DISCLAIMER.

Xactware DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE MAY BE INTERRUPTED OR CONTAIN AN ERROR. WHILE XACTWARE TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, XACTWARE DOES NOT GUARANTY THAT THE SERVICE CANNOT BE COMPROMISED.

4) MUTUAL CONFIDENTIALITY.

a). Definition of Confidential Information. Confidential Information means all information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Xactware 's Confidential Information includes without limitation the Service, and Licensed Software and Documentation (including without limitation the Service user interface design and layout).

b). Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

c). Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.

d). Disclosure Required by Law. The Recipient may disclose Confidential Information to the extent required by law, court order or legal process, but will attempt to provide Discloser with advance notice to seek a protective order.

e). This Section 4 is shall not limit Xactware's ability to use Anonymous Data (including usage information and market date) or information acquired from Customer through the use of any feedback system related to the Services, which remain Xactware's property.

5) PROPRIETARY RIGHTS.

a). Reservation of Rights by Xactware. The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation (defined below), and other technologies provided by Xactware as part of the Service are the proprietary property of Xactware and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Xactware. Xactware reserves all rights unless expressly granted in this Agreement.

b). Customer Restrictions. Customer may not (i) sell, resell, rent or lease the Service; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, 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 Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Licensed Software and Documentation (defined below); (vi) remove or modify any proprietary marking or restrictive legends in the Service or Licensed Software and Documentation; or (vii) access the Service or use the Licensed Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

c). Feedback. By submitting ideas, suggestions or feedback to Xactware regarding the Service, Customer agrees that: (i) such items submitted do not contain confidential or proprietary information; and (ii) Customer hereby grants Xactware an irrevocable, royalty-free and full paid perpetual license to use such items for any business purpose.

d). Licensed Software and Documentation. All software provided by Xactware as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by Xactware (Licensed Software and Documentation) are licensed to Customer as follows: Xactware grants Customer a non-exclusive, license during the Term, to such Licensed Software and Documentation, for use solely with the Service.

6) EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.

a). IN NO EVENT SHALL XACTWARE BE LIABLE FOR LOSS OF PROFIT, GOODWILL, OR ANY OTHER GENERAL, SPECIAL, CONSEQUENTIAL, INDIRECT, CIRCUMSTANTIAL, OR INCIDENTAL DAMAGES SUFFERED OR CLAIMED BY YOU OR ANY OTHER PERSON, FIRM, OR ENTITY AS A RESULT OF YOUR USE OF THE LICENSED PRODUCT, DOCUMENTATION, DATA, SERVICES, OR OTHER ITEMS PROVIDED HEREUNDER, IRRESPECTIVE OF WHETHER SUCH LOSS OF PROFIT, GOODWILL, OR OTHER DAMAGES OF ANY NATURE WAS KNOWN OR COULD HAVE BEEN REASONABLY FORESEEN BY XACTWARE.

b). LIMITATION OF LIABILITY. XACTWARE 'S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE GREATER OF THE AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING MONTH UNDER THIS AGREEMENT OR $100.

7) TERM, TERMINATION, RETURN OF DATA AND SUSPENSION OF SERVICE.

a). Term. The term of this Agreement shall be for one (1) month, or the period designated by you on the order confirmation receipt. The term will automatically renew for like terms at the date of expiration unless you provide written verified notification of intent to terminate this Agreement at least fifteen (15) days prior to the date of expiration. This Agreement may be terminated by Xactware without cause by giving you at least thirty (30) days written notice of its intent to terminate, except in the event of a breach by you of this EULA, in which case this EULA may be terminated by Xactware immediately upon written notice, with no rights of cure.

b). Mutual Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

i. Actions upon Termination for Material Breach.

- Upon any termination as provided in 7(b) above by Customer, Xactware must refund any prepaid and unused fees covering the remainder of the Term (if applicable).

- Upon any termination as provided in 7(b) above by Xactware, Customer must pay any unpaid fees and fees covering the remainder of the Term (if applicable). The Service will also be terminated.

c). Return or Destroy Xactware Property Upon Termination. Upon termination or expiration of this Agreement for any reason, Customer must pay Xactware for any amounts owed through the date of termination or expiration, and destroy all property of Xactware (including without limitation the Xactware mobile app). Customer will confirm its compliance with this destruction requirement in writing upon request of Xactware.

d). Return of Customer Data.

i. Within 30-days after termination, upon request Xactware will send the Customer Data as provided in Section 2(a).

ii. After such 30-day period, Xactware has no obligation to maintain the Customer Data and may destroy it.

e). Suspension of Service for Violations of Law. Xactware may immediately suspend the Service and remove applicable Customer Data if it in good faith believes that, as part of using the Service, Customer may have violated a law. Xactware may try to contact Customer in advance, but it is not required to do so.

8) GOVERNING LAW AND FORUM. This Agreement is governed by the laws of the New York without regard to conflict of law principles. Any dispute arising out of or related to this Agreement must be exclusively brought in the state and federal courts for the state of New York. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum.

9) INDEMNITY. Customer indemnifies Xactware and hold Xactware harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys' fees and costs) related to all third party claims, charges, and investigations, caused by (i) Customer's failure to comply with this Agreement, including, without limitation, submission of Customer Data that is misleading or false, or violates third party rights or applicable laws, (ii) any Customer Data submitted to the Services, and (iii) any activity in which Customer engages in through the Service. For the avoidance of doubt, upon demand Customer must pay or reimburse Xactware for any costs or expenses incurred or suffered by Xactware in responding to any legal process (such as a subpoena or other court order) requests regarding Customer Data.

10) MISCELLANEOUS OTHER TERMS.

a). Money Damages Insufficient. Any breach by a party of this Agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

b). Entire Agreement and Changes. This Agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification of this Agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.

c). No Assignment. Customer may not assign, sub-license, or otherwise purport to transfer this Agreement or an order to a third party, and any such assignment, sub-licensing, or transfer shall be void.

d). Electronic Notice and Messages. For purposes of service messages and notices about the Services to you, Xactware may place a banner notice across its pages to alert you of important notices. Alternatively, notice may consist of an email to an email address associated with Customer's account. Customer understands that Xactware has no liability associated with Customer's failure to maintain accurate contact information, including, but not limited to, failure to receive information or notice.

e). Independent Contractors. The parties are independent contractors with respect to each other.

f). Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.

g). Survival of Terms. Any terms that by their nature survive termination or expiration of this agreement for the parties to receive the benefits of and enforce their rights under this agreement, will survive.

h). CISG Not Apply. The UN Convention on Contracts for the International Sale of Goods does not apply.

i). Conflicts. If there is a conflict between the terms of this Agreement and any order, the order prevails.

j). Severability. If any provision of the Agreement is declared by any competent court or body to be illegal, invalid or unenforceable under the law of any jurisdiction, or if any enactment is passed that renders any provision of this Agreement, nor the legality, validity or enforceability of such provision under the law of any other jurisdiction.


Ver. May 2020