Software when used as a Service.
When using the WindowWarePro (WWP Website) Internet website subscription service, or any of the other services that may be offered including, but not limited to, data, off-line components, dashboards, reports, templates, third party components, lists or reports (identified as 'The Services') your activity is subject to this Terms of Use Agreement (Terms of Use). Failure to accept these Terms of Use prohibits your use of the Services. Your use of the Services indicates your acceptance of Terms of Services. This includes acceptance both when acting as an individual for yourself, or on behalf of company, corporation or legally identified entity, in such case you are warranting your authority to enter into the Terms of Use Agreement.
We reserve the right to modify these Terms of Use as we believe necessary with official notice being given with the posting of any revisions on the WWP Website. It is incumbent for you to regularly review the Terms of Use for any changes.
Further, additional conditions which may either be posted on the site or found in ordering documents (Order Schedule) may apply to some of the services provided. These conditions describe order specific information that may relate to subscription fees, term of License, user amounts, billing information and / or Service names. Any use of the Services is subject to said conditions that are incorporated into this Agreement by reference. The provision of those conditions will prevail should any discrepancy exist between the additional conditions and the Agreement.
License
WindowWarePro hereby grants you a non-exclusive, non-transferable right of use for the Web Site and its Services for each subscription term. (Term of License). This grants use solely for your own internal business purposes to this Agreement and the Order Schedule, and cannot be shared or used by more individuals than contracted.
A combination of content is to be found on the Website. This content includes that created by WindowWarePro, their partners and subscribers. Your use of this content is restricted to your internal business purposes as they relate to such content and your grant to use the Services. You are restricted from modifying, publishing, transmitting, participating in the transfer of, sale of, reproduction of, the creation of derivative works of, distribution of, publicly performance of, reverse engineering of, public display of, or exploitation in any way of any portion of the software, materials or content on the WWP Website either in whole or in part
Content
You are solely responsible for all materials, whether publicly posted or privately transmitted, that you upload, post, e-mail, transmit, or otherwise make available on the WWP Website or through the Service. This responsibility extends to the accuracy, quality, integrity, legality, reliability, and appropriateness of the content. That content will be protected by WindowWarePro with the minimum of protective precautions that WindowWarePro utilizes to protect its similar proprietary information from unauthorized disclosure. WindowWarePro will not, without your prior written consent, disclose any of such content to any third party other than those individuals whose access is required to enable WindowWarePro to perform its obligations hereunder.
You warrant that you own or have sufficient legal right to the intellectual property rights in Your Content and that Your Content, including any use thereof by Licensor as described herein, does not violate applicable law or the rights of any third party. You hereby grant WindowWarePro, its affiliates and partners a worldwide, irrevocable, royalty-free, nonexclusive, sub licensable right during the License Term to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish content submitted by you and subsequent versions of that content for the purposes of (I) displaying said content on the WWP Website and other related Internet sites for your users, (ii) processing said content in connection with providing the Services to you, (iii) distributing said content, either electronically or via other media, to your users seeking to download or otherwise acquire it, and/or (iv) storing or hosting said content in a remote database or on the WWP Website for access by your users. This license will apply to the distribution and the storage of said content in any form, medium, or technology now known or later developed.
During your time on the WWP Website you may be exposed to content that you may find offensive, indecent, objectionable or that is inaccurate. You agree to bear all risks associated with using that content. WindowWarePro has the right, but not the obligation, to remove any content that may, in its sole discretion, violate this Agreement or that is otherwise objectionable.
WindowWarePro reserves its right to adjust the scope of the Services and the underlying technical infrastructure allowing it to take advantage of the continuing development of the Services and technical advances.
Communications such as service announcements and/or administrative messages from WWP or its partners may be may be included in the Services.
There is no option available to prevent your receiving these service announcements and administrative messages, which may include advertisements, during any period that you use the WWP Website and other Services. You may send WWP specific written notice requesting the termination of your subscription and that all details pertaining to your account are eliminated from the Website and existing mailing lists.
It is understood that technology, by nature, is under continual development and WWP reserves the right to adjust the scope of services and its technical infrastructure to adapt to any changing environment.
Support
Technical support will be available via phone and/or Internet access. Phones will be manned from 9:00 AM to 5:00 PM Eastern Time.
Retained Rights
WWP retains all right, title and interests, inclusive of any and all intellectual property rights, in and to the WWP Website and additional Services, any related materials, content and any suggestions, ideas, derivatives, feedback, recommendations, requests for enhancements or any other information by subscribers or any other parties relating to the WWP Website or Services. Further, any and all content published on the Site, including, but not limited to, reports, presentations, written content, graphics, images, marks, logos, video or sound clips, Flash or Java animation, are protected by Licensor's copyrights or trademarks, and their respective partners and/or users.
Third-Party Websites, Their Products, and Services
The WWP Website may contain links to other Internet sites that are owned by third parties. Subscribers using any of those sites are subject to all conditions posted at each respective site. WWP has no control over such sites and is not responsible for any use of such sites or of any content found there. WWP does not endorse or warrant any content, claims, or declarations presented.
Fees
Our basic field estimating software is free to use but subscription fees for add-on's are due once a month on the day of purchase. Failure to make payment may result in the restriction of access to the WWP Website to all but the subscribers historical data.
Service Terms, Termination and Service Cancellation
Subscriptions are automatically renewed monthly and fees will be charged to subscriber's credit card on file unless written notice (15) days prior to the current month's end. . Fees at the time of automatic renewals will be at the currently prevailing Subscription rates.
Notwithstanding the foregoing, WWP may immediately terminate or suspend your use of the Services provided hereunder, or terminate your account and this Agreement if you (a) fail to pay any applicable fees when due, or (b) breach or otherwise fail to comply with this Agreement and then fail to remedy this breach within thirty (30) days of notice having been served. You will continue to be charged for the fee-based Services during any period of suspension. Termination will not relieve you from the obligation to pay fees that remain unpaid and will not limit either party from pursuing other available remedies.
To terminate any of the fee-based Services, or reduce the number of users requires the submission of written notice at least 15 days prior to the termination or reduction.
Should WWP find it necessary per the terms this Agreement or any part thereof in accordance with this Agreement as a result of your breach, negligence or default, WWP will have no obligation to refund any fees previously paid for Services. The provisions of this section will not apply to those situations defined by law. Access to Subscriber's historical data will remain available until WWP forwards a file of Subscriber's data to their address of record.
In the unlikely event WWP (or any successor in interest) permanently ceases to operate the Services, WWP will refund to you any pre-paid subscription fees for all remaining month where access is no longer available.
Privacy Policy
All information collected by WWP from Subscribers is subject to the WWP privacy policy and all applicable privacy laws.
WWP is a global operation, therefore it is understood and agreed upon that any subscriber provided personal information may be processed by WWP and WWP may, for example, transfer such information within WWP's global infrastructure and/or operations. Any such information processed in a manner consistent with WWP Privacy Policy.
The WWP Website Site is hosted in the United States. If you are here from the European Union or any other region where the laws governing data collection and use that might differ from U.S. law, please note that you may transfer Your Content to the United States and by providing Your Content to WWP you warrant, represent, and covenant to WWP that: (a) you possess the authority and rights to enter into this Agreement, to grant the rights granted by you under this Agreement, and to perform your obligations under this Agreement; (b) any consents or approvals required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party, are in place, or will be obtained by you as may be necessary for either party to perform its obligations, (c) you are authorized to distribute Your Content to WWP and (d) you are not in violation of any applicable data privacy rules or regulations, contractual obligations, or internal privacy policies.
Subscriber does acknowledge and agree that certain of the Services may be provided by WWP's partners, and that your contact information may be provided to such partners in order for them to make these Services available to you and these partners may contact you directly regarding other service offerings that they provide. You may opt out of receiving such information about a partner's other service offerings by following the notice procedure outlined below.
WindowWarePro.com User Take Special Note: You understand and acknowledge that your use of any of the WindowWarePro.com tools designed to allow interaction between WindowWarePro.com and the Services, whether available on the Website or on WindowWarePro.com, User Data will be transmitted outside the WindowWarePro.com system, and to the extent the User Data has left the WindowWarePro.com system, WindowWarePro.com is not responsible for the privacy, security or integrity of that User Data. "User Data" is defined as any electronic data or information submitted by WindowWarePro.com Subscribers into the WindowWarePro.com system.
Site Conduct and Restrictions
Upon request you agree to provide WWP with accurate, current and complete information. You also agree to update this information of record as soon any changes occur. You are responsible for maintaining the confidentiality of your accounts and passwords. Your access to the WWP Website is restricted to your business operation and those individuals immediately associated with its operation only, and may not be shared with any other entity. Should the unauthorized use of your passwords, accounts or any other breach of security occur you agree to notify WWP immediately. You agree to exit from your accounts at the termination of each session. WWP will not be responsible for any loss or damage that may result if you fail to comply with these requirements.
At the beginning of your subscription you establish your personal administrator user ID and password for accessing the Services. You are solely responsible, for authorizing and terminating individual user ID's and passwords and specifying the access rights of those individuals to the Services.
You will be responsible for all activity occurring under your account and will comply with all applicable local, state, and foreign laws, treaties and regulations in connection with your use of the Services, including without limitation, laws and regulations governing data privacy, international communications and transmission of technical or personal data.
The technology and the software underlying the Website and the Services are the property of WWP and/or Licensor's affiliates, suppliers and partners. You agree not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or software underlying the Website or the Services. You agree that you will not modify the software underlying the Website in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Website. Without limiting the foregoing, you agree that you will not use the Website to take any of the following actions:
Defame, harass, abuse, stalk, threaten, or violate the legal right of others in any fashion;
Publish, post, upload, e-mail, distribute, or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
Transmit files which contain viruses, corrupted files, or any software or programs that may damage or adversely affect the operation of another person's computer, the WWP or its partner Websites, any software, hardware, or telecommunications equipment;
Advertise or offer to sell any goods or services for any commercial purpose without WWP's written consent to do so;
Transmit spam in any form including, but not limited to, surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, chain letters or other unsolicited messages;
Download any file that you know, or could reasonably be expected to know, cannot be legally obtained in such manner;
Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
Restrict, inhibit or in way prohibit any user from using and enjoying any area within the Website;
Interfere with or disrupt WWP's Website, its servers, or networks;
Attempt to scan , test the vulnerability of the Site or circumvent any security mechanism used by WWP to secure the Website;
Impersonate any person including, but not limited to, WWP representatives, falsely state or otherwise misrepresent your affiliation with any person or entity;
Forge headers, manipulate identifiers or other data in order to disguise the origin of any content transmitted through the Website or to manipulate your presence on the Website;
Initiate any action that imposes an unreasonably or disproportionately large load on WWP's infrastructure;
Engage in illegal activities of any kind;
Collect, store or transmit personal information about individuals or any information subject to applicable privacy laws or regulations,
You agree that WWP's bulletin board services, chat areas, news groups, forums, communities and/or message or communication facilities (collectively, the "Forums") are provided exclusively for sending and receiving messages and material that are proper and related to that particular Forum.
Should you select a username that, in WWP's sole discretion, is obscene, indecent, abusive or that might otherwise subject WWP to public disparagement or scorn, WWP reserves the right, without any prior notice to you whatsoever, to automatically change your username, delete your posts from WWP's Websites, deny you access to WWP's Websites, or any combination of these options.
Unauthorized access to the Website immediately breaches this Agreement and a violation of the law. You agree not to access the Website by any means other than through the interface that is provided by WWP as its sole point of access to the Website. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Website, except by those automated means that have been approved by WWP beforehand in writing.
Accessing the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes is strictly prohibited.
Use of the WWP Website is subject to all existing laws and legal processes. Nothing contained in this Agreement will limit WWP's right or obligation to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Website, which may include disclosing your data to the applicable authorities.
Indemnification
You agree to defend WWP from any third party claim, and will pay all damages finally awarded against WWP in such claim or amounts agreed to in settlement, arising out of:
Your use of the Website;
Any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you;
The content, the quality, or the performance of content that you submit to the Website; or
Your violation of this Agreement.
WWP will defend you from any third party claim that your use of WWP proprietary software hosted on the Website infringes its copyright, patent or trademark, and will pay all damages finally awarded against you in such claim. If WWP settles the claim, WWP will pay all settlement amounts on your behalf. In exchange, you must (a) promptly notify WWP if such a claim is asserted against you, (b) allow WWP sole defense of the claim, and (c) cooperate with WWP's requests for reasonable assistance, at the expense of WWP. In the event that you are in violation of this Agreement, WWP will not be obligated to indemnify you. If as a result of the infringement or misappropriation your use of the software hosting on the Website is enjoined by a court of law, WWP will modify the software to eliminate the infringement, acquire a license allowing you to continue using the software, or if neither option is possible, refund to you the applicable subscription fees paid by you during the 3 month period preceding the injunction. This is your exclusive remedy for a third party's infringement or misappropriation claim against your use of the software hosted on the Website.
Warranty and Disclaimers
WWP warrants that during the subscription term, the Website will conform to the documentation provided by WWP. In the unlikely event the Website fails to conform to the documentation, upon your promptly notifying WWP, WWP will make modifications to the Site and/or the documentation to bring it into conformity. This is your exclusive remedy.
EXCEPT FOR THE WARRANTY PROVIDED IN THE PARAGRAPH IMMEDIATELY ABOVE, THE WEBSITE AND THE SERVICES, ITS SOFTWARE, CONTENT AND OTHER MATERIALS, ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. WWP AND ITS AFFILIATES, SUPPLIERS AND PARTNERS MAKE NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE WEBSITE OR ANY OF THE CONTENT, SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS AVAILABLE THROUGH THE WEBSITE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WWP NOR ITS AFFILIATES, SUPPLIERS OR PARTNERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SERVICES OR THE WEBSITE, ITS SOFTWARE, CONTENT OR OTHER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR LOSS OF DATA OR OTHER INTANGIBLE LOSSES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WWP AND ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO WWP FOR THE SERVICES DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES/JURISDICTIONS, WWP'S LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Arbitration
Any dispute arising out of or relating to this Agreement or the Website will be finally settled by arbitration, except that WWP may bring an action in a court of competent jurisdiction with respect to any dispute affecting WWP's intellectual property rights whether statutory or contractual. The arbitration will be conducted in accordance with the commercial arbitration rules (the "Rules") of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in St Augustine, Florida, United States, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. All arbitration proceedings will be conducted in English by a single arbitrator selected under the Rules who must be a lawyer and fluent in English. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of such limitation will be deemed void as between the parties. Either you or WWP may seek any interim or preliminary relief from a court of competent jurisdiction in St Augustine, Florida, necessary to protect the rights or the property of you or WWP (or its affiliates, agents, suppliers, and subcontractors), pending the completion of arbitration.
Miscellaneous
The Website features trademarks, service marks, and logos that are the property of WWP and/or its affiliates, suppliers, partners and licensors. The Website also may include trademarks, service marks or logos of other third parties. All of these trademarks, service marks and logos are the property of their respective owners, and you agree not to use them in any manner without the prior written permission of the applicable owner.
WWP may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon WWP's posting them on the Website or delivering them to you through e-mail. You may update your e-mail address by visiting the Services where you have provided contact information. If you do not provide WWP with accurate information, WWP cannot be held liable if WWP fails to notify you. You may have the right to request that WWP provide such notices to you in paper format, and may do so by contacting WindowWarePro Contracts Administration, 255 Atlantis Circle Suite 201 St Augustine, Florida 32080 Any other communication to WWP should also be sent to that address.
WWP's failure to exercise or enforce any of the rights or provisions of this Agreement will not constitute a waiver of such rights or provisions. This Agreement and your right to use the Services may not be assigned by you without the prior written approval of WWP.
This Agreement, including any applicable Order Schedule and all terms, conditions, and policies that are incorporated into these terms by reference, constitute the entire agreement between you and WWP and govern your use of the Website and Services, and supersedes any, and all, prior agreements that you may have had with WWP. Any additional or different terms in your ordering documentation such as purchase orders are hereby deemed to be material alterations and notice of objection to, and rejection of, them is hereby given.
This Agreement will be construed in accordance with the laws of the State of Florida, excluding its conflicts of law principles, and the federal laws of the United States.
The Website and the Services, its software, content and other materials, will be deemed 'commercial computer software' and 'commercial computer software documentation' pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections). The use of the Website and the Services including, but not limited to, its reproduction and display, by the United States of America and/or any of its instrumentalities, regardless of form, will be governed by this Agreement.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, the invalid or unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the intent of the original provision. Where a court is unable to construe any unenforceable or invalid provision to make it binding, the court will severe and delete the provision. In any event, all other terms which remain valid and enforceable will survive and remain in full force and effect.
If you have a dispute with one or more users, you release WWP (and WWP's officers, directors, agents, affiliates and employees) from claims, demands, and damages (direct and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a Florida resident or incorporated in Florida, you waive Florida Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not known or suspect to exist in his favour at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."