Effective December 1st, 2014
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.
- If Customer does not agree to this Terms of Service agreement. then press "Reject." In such case, Customer cannot use the Service.
This Terms of Service agreement is between Property Pres Wizard, LLC, an Ohio limited liability company (PPW), 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 PPW mobile app, described at: http://www.propertypreswizard.com.
2) THE SERVICE.
a). Customer Owned Data (this section only applies if Customer is paying PPW for the Service). All files, images and other information uploaded by Customer remains the sole property of Customer, as between PPW and Customer (Customer Data). Customer grants PPW the right 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 for a fee of $500 (up to 8GB), PPW will send Customer most of its files and images from within the Service via a DVD, or other media. 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 PPW that it has all the necessary rights and permissions to upload, store 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.
b). 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 PPW promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service' Support Manual and applicable law.
c). 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.
d). PPW Responsibilities. PPW 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. PPW may change this policy, but during any paid term PPW will provide commercially reasonable efforts to notify Customer of any significant changes during a paid term. When Customer provides permission for PPW to remotely access its systems, PPW 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 PPW 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 PPW 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, PPW may suspend, terminate, or both (without liability) Customer's use of the Services upon 5 days notice.
PPW 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 PPW TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, PPW 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). PPW'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.
5) PROPRIETARY RIGHTS.
a). Reservation of Rights by PPW. The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation (defined below), and other technologies provided by PPW as part of the Service are the proprietary property of PPW and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with PPW. PPW 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 PPW regarding the Service, Customer agrees that: (i) such items submitted do not contain confidential or proprietary information; and (ii) Customer hereby grants PPW 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 PPW as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by PPW (Licensed Software and Documentation) are licensed to Customer as follows: PPW 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). EXCLUSION OF CERTAIN DAMAGES. PPW IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOST PROFITS, LOSS OF DATA, RECORDS OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICE).
b). LIMITATION OF LIABILITY. PPW'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 12 MONTHS UNDER THIS AGREEMENT OR $100.
7) TERM, TERMINATION, RETURN OF DATA AND SUSPENSION OF SERVICE.
a). Term. Either party can terminate the Service by providing notice to the other party. More information on the cancellation policy is located at www.propertypreswizard.com/cancelation-policy. Any prepaid fees are non-refundable. Other than terminated as above, this agreement continues for the duration specified when the Service was ordered, and auto-renews for the duration as specified when ordering (Term).
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, PPW 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 PPW, 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 PPW Property Upon Termination. Upon termination or expiration of this agreement for any reason, Customer must pay PPW for any amounts owed through the date of termination or expiration, and destroy all property of PPW (including without limitation the PPW mobile app). Customer will confirm its compliance with this destruction requirement in writing upon request of PPW.
d). Return of Customer Data.
i. Within 30-days after termination, upon request PPW will send the Customer Data as provided in Section 2(a).
ii. After such 30-day period, PPW has no obligation to maintain the Customer Data and may destroy it.
e). Suspension of Service for Violations of Law. PPW 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. PPW 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 Ohio 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 Seneca County, Ohio. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys' fees and costs from the other party.
9) INDEMNITY. Customer indemnifies PPW and hold PPW 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 PPW for any costs or expenses incurred or suffered by PWW 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. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned without the consent of the other party as part of a merger, or sale of all or substantially all of the business or assets, of a party.
d). Electronic Notice and Messages. For purposes of service messages and notices about the Services to you, PPW 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 PPW 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 the order, the order prevails.
Ver. November 2014