AUTOMATED COST TRACKING SOLUTIONS, LLC (ACTS)
User Agreement
This ACTS User Agreement (Agreement) is between Automated Cost Tracking Solutions, LLC (“ACTS” or “Company”), and end-user (“Contractor”).
The purpose of this Agreement is to define the relationship between Company and Contractor who wishes to utilize the software offered by Company (“Offering”), and the obligations of each party with respect to this transaction.
Now, THEREFORE, based upon the representations and warranties and in consideration of the mutual promises, terms and conditions stated herein, the parties do now AGREE as follows:
- SOFTWARE OFFERING. Company has created a software that tracks all contracting project costs in real time which can be aggregated and managed in numerous ways. Controls help monitor accuracy of cost information, and integration with other invoicing and billing functions create work flow efficiencies. Offering also includes a lead tracking functionality to improve lead tracking and closing.
- OWNERSHIP, CONTROL, LICENSE OF OFFERING. Company owns the technology and all elements of the Offering, including the technology, code, design, ideas, functionality, improvements, implementation, and all other aspects of the Offering, perpetually. Company shall have the right to control the implementation and operation of the Offering in its entirety during any periods that Contractor is using the Offering. Company grants only a temporary, revocable license to Contractor for the use of the Offering subject to the terms and conditions herein. Company may revoke the license, or right to use or access all, or any part of, the Offering in its sole discretion, at any time. Notwithstanding the foregoing, Company shall create, and shall retain all ownership rights in, any code, computerized instructions, or similar items necessary for the operation of the Offering. The parties agree that Company’s provision of access shall not be considered to be a transfer of any right to use or consume tangible personal property.
- IMPLEMENTATION. The Offering is web-based and can be accessed by Contractor from any web-connected device. Contractor will create user profiles and shall be able to access the Offering via the worldwide web on any profile, according to the characteristics and access granted to the user.
- PRICING. Pricing is subject to change from time to time, and shall be published at [DOMAIN]. Customer shall be notified of any price changes prior to being charged at a different rate. Pricing structure and access may modify from time to time.
- FINANCIAL TRANSACTIONS. Company shall charge Contractor the published price for the service at the increment described by Company by charging a credit card kept on file with Company.
- SERVICE LEVELS AND WARRANTIES. Contractor represents and warrants that:
a. Contractor is under no contractual or other restrictions or obligations that are inconsistent with the execution of this Agreement, or, to its best knowledge, which will interfere with its performance of its obligations per this Agreement.
b. In the event Contractor is not a natural person, Contractor represents and warrants that Contractor possesses the requisite legal authority to engage in business in any relevant jurisdiction in which a purchase may result from the Offering.
c. Contractor has reviewed the materials provided in connection with the Offering, and agrees that all material conforms to all requirements of any federal or state consumer protection requirements.
d. The Party or Parties executing this Agreement have the requisite authority to bind the Contractor to the terms of this Agreement.
e. Contractor shall make no effort to recreate, reverse-engineer, or otherwise copy any elements of the Offering.
- MUTUAL CONFIDENTIALITY. Except as required or authorized by law, neither Party to this Agreement shall directly, or indirectly, use, disseminate, discuss, or disclose in any form Confidential Information of the other Party. This obligation applies during the term of this Agreement and any time after its termination. The term "Confidential Information" includes, without limitation, (i) the terms of any contracts or prospective contracts relating in any way to the other Party, (ii) any elements of the other Party’s business strategy, (iii) marketing methods, (iv) financial results, status or condition, (v) lists of current and/or prospective customers, vendors, and suppliers, (vi) strategic plans, (vii) proprietary computer and systems technology, (viii) production methods, (ix) products and product and systems technology, (x) trade secrets, (xi) policies and procedures, and (xii) any other non-public information concerning the Parties and/or its products, services, employees, suppliers or customers. Confidential Information does not include information that is generally known in the trade or industry. The Parties’ obligations under this section are in addition to all other obligations of confidentiality that the Parties may have under general legal or equitable principles.
All samples, computer discs or systems, images, drawings, inventions, writings, and audio or photographic information of any kind containing any Confidential Information or relating to Parties’ business that comes into the other Party’s possession remain the sole property of disclosing Party. Such items shall not be copied, reprinted or otherwise reproduced or disseminated by the receiving Party. The receiving Party shall immediately return all such items to the disclosing Party upon the earlier of disclosing Party’s request therefore or the termination of this Agreement.
- TERM, TERMINATION, AND EXCLUSIVITY. This Agreement shall remain in existence on a month-to-month basis unless either party provides a 30 days’ notice of termination. Upon notice of termination, the Offering shall remain active through the next monthly renewal period, at which point access to the Offering shall terminate and Contractor shall no longer be charged for services.
During the term of this Agreement, Contractor shall not use or utilize any alternative offering that competes directly or indirection with the Offering by providing a substantially similar product, service, or benefit to the Contractor.
- NO AFFILIATION, AGENCY, OR PARTNERSHIP. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement. Contractor has no authority whatsoever to bind Company in any respect. Neither Company, nor any users of the Offering may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. For all purposes related to the registration, determination, or collection of any type of tax (including any interest or penalties arising from the late payment, late filing, non-filing, or non-payment therefrom) which is or may be imposed by any governmental authority, Contractor represents that Contractor is an independent contractor.
- ACCEPTANCE OF THE TERMS OF USE AND PRIVACY POLICIES. Contractor hereby acknowledges and agrees to be bound by the Term of Use and Privacy policies of the Company which can be found at [DOMAIN], as updated and amended from time to time. In the event that any terms of this Agreement are in conflict with any of these policies, the terms of this Agreement shall supersede and govern.
- ARBITRATION. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the county of Butler, state of Ohio or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in commercial contracts and shall include a written record of the arbitration hearing. An award of arbitration may be confirmed in a Ohio court of competent jurisdiction.
- GOVERNING LAW. The parties agree that all controversies and claims arising out of the relationship between the parties, including but not limited to those arising out of the terms of this Agreement, shall be determined by applying the laws of the State of Ohio. Company's failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these terms and conditions.
- LIMITATIONS OF LIABILITY. COMPANY MAKES NO REPRESENTATION THAT THE OFFERING IS FIT FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY, OR ITS RESPECTIVE OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, ATTORNEYS OR AGENTS, BE LIABLE TO CONTRACTOR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSSES FROM BUSINESS INTERRUPTION AND ANY OTHER DAMAGES WHATSOEVER RESULTING FROM ANY (I) ACCESS TO OR USE OF THE OFFERING OR ANY SERVICES OFFERED BY CONTRACTOR VIA THE OFFERING, INCLUDING SERVICES PROVIDED PURSUANT TO AN AGREEMENT FORMED INDEPENDENTLY OF THE OFFERING, WHETHER OR NOT AN AGREEMENT FOR SERVICE FORMED VIA THE OFFERING IS IN EFFECT; (II) ERRORS, MISTAKES, OR INACCURACIES OF DATA, MARKS, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE OFFERING OR SUBMITTED CONTENT; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) THE EXECUTION OF ANY COMPUTERIZED INSTRUCTIONS OR CODE, INCLUDING BUT NOT LIMITED TO, BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE OFFERING BY ANY THIRD PARTY; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE OFFERING; (VI) ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE OFFERING OR SUBMITTED CONTENT; (VII) ANY FAILED NEGOTIATIONS FOR A SERVICE, ANY DISPUTES THAT ARISE DURING OR AFTER THE NEGOTIATION OF A SERVICE OR THE FORMATION OF A CONTRACT FOR A SERVICE, OR ANY OTHER DISPUTE THAT ARISES BETWEEN USERS OF THE OFFERING; (VIII) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; (IX) ANY ERROR, PROBLEM, ACCIDENT, OR OTHER ISSUE OCCURRING ON CONTRACTOR’S WEBSITE WHICH MAY HAVE BEEN CAUSED BY THE USE OR UTILIZATION OF THE OFFERING ON THE WEBSITE; (X) ANY HARM OR DAMAGE CAUSED TO CUSTOMERS, FINANCIAL OR OTHERWISE, AS A RESULT OF THEIR USE OF THE CONTRACTOR’S WEBSITE AND/OR THE OFFERING; OR (XI) ANY USE OF ANY DATA, MARKS, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE OFFERING OR SUBMITTED CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE OFFERING, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (XII) LEGAL FEES, FINES, PENALTIES, INTEREST, AND ANY OTHER CONSEQUENTIAL DAMAGES ARISING UNDER LOCAL, STATE, FEDERAL, OR INTERNATIONAL LAW AS A RESULT OF CONTRACTOR’S FAILURE TO COMPLY WITH ANY LEGAL REQUIREMENT ARISING AS A RESULT OF CONTRACTOR’S USE OF THE OFFERING; OR (XIII) ANY COSTS OF COMPLIANCE, REGISTRATION, OR SUBMISSION OF INFORMATION, FILING OF RETURNS, OR FUNDS TO ANY TAXING AUTHORITY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF COMPANY, OR ANY OF THE ABOVE-REFERENCED RESPECTIVE PARTIES, ARISING FROM OR RELATING TO THE OFFERING, AND/OR SUBMITTED CONTENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO COMPANY BY THE CONTRACTOR HEREUNDER.
CONTRACTOR HEREBY ACKNOWLEDGES THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH THE CONTRACTOR. CONTRACTOR FURTHER ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM THE USE OF THE OFFERING.
INDEMNIFICATION AND HOLD HARMLESS. CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY, AND ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES) ARISING FROM CONTRACTOR’S USE OF, ACCESS TO, AND PARTICIPATION WITH THE OFFERING; CONTRACTOR’S VIOLATION OF ANY PROVISION OF THE TERMS OF USE OF COMPANY, INCLUDING THE PRIVACY POLICY; CONTRACTOR’S VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, TRADEMARK, PATENT, PROPRIETARY, OTHER INTELLECTUAL PROPERTY RIGHT, OR PRIVACY RIGHT; OR ANY CLAIM THAT CONTRACTOR SUBMITTED CONTENT CAUSED DAMAGE TO A THIRD PARTY. CONTRACTOR AGREES TO DEFEND, INDEMNIFY, AND HOLD COMPANY HARMLESS FOR ANY COSTS ARISING OUT OF THE COLLECTION, DETERMINATION OR PAYMENT OF ANY TAX (INCLUDING ASSOCIATED INTEREST AND PENALTIES) OWED TO ANY GOVERNMENTAL AUTHORITY ARISING OUT OF CONTRACTOR’S USE OF THE OFFERING. IN THE EVENT OF ANY GOVERNMENTAL INQUIRY, EXAMINATION, OR COLLECTION PROCEEDINGS RELATED TO THE COLLECTION, DETERMINATION, OR PAYMENT OF ANY TAX, CONTRACTOR SHALL FURTHER DEFEND, INDEMNIFY, AND HOLD COMPANY HARMLESS FOR THE COST OF ANY REPRESENTATION BEFORE THE RELEVANT TAXING AUTHORITY. ALL INDEMNIFICATION AND HOLD HARMLESS PROVISIONS CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be effected, impaired or invalidated, and the parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
- NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
- NO DRAFTING PRESUMPTION. No presumption will operate in favor of or against any Party as a result of any responsibility that any Party may have had for drafting this Agreement. Company and Contractor acknowledge and mutually agree that this Agreement and all contents herein were jointly prepared by the Parties.
- ASSIGNMENT: Company may assign its rights and duties under this Agreement to any party at any time without notice to Contractor. This Agreement and any terms and rights under it are not assignable or transferable by the Contractor without the express written permission of the Company or its authorized agents, assignees, or successors.
- NOTICES. Any notice, demand or request required or permitted to be given by Contractor under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to Company at Company's address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company's books and records. Any notice required to be given by Company shall be deemed provided upon submission of an email to Contractor at the email address provided by Contractor to Company.
- ENTIRE AGREEMENT. The terms contained herein represent the entire and complete Agreement between Contractor and Company. Any amendments or revisions of this Agreement must be agreed upon in writing and attached as an Amendment hereto.
- COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission. Notwithstanding the foregoing, Company may, in its sole discretion, provide or accept electronic signatures in a manner set forth by Company.
