ABE Software End User License Agreement
Last Modified: July 1, 2019
This End User License Agreement (this “Agreement”), is a binding agreement between Cross Section Technologies and Mainframe Real Estate (collectively ”Licensor”) and you as the user and licensee of the ABE Software (”Licensee”).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER AND ABLE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE OR OTHERWISE ACCESS LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
- Definitions. For purposes of this Agreement, the following terms have the following meanings:
”Authorized Users” means persons authorized to use the Software pursuant to the license granted under this Agreement.
”Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
”Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
”Licensee” has the meaning set forth in the preamble.
”Licensor” has the meaning set forth in the preamble.
”Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
”Software” means the ABE software program for which Licensee is requesting a license.
”Term” has the meaning set forth in Section 11.
”Third Party” means any Person other than Licensee or Licensor.
- License Grant and Scope. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 and elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee and/or its Authorized Users, to:
(a) Access and use one (1) copy of the Software at any given time on one (1) computer or other device owned or leased, and controlled by, Licensee.
(b) Use and run the Software as properly accessed in accordance with this Agreement and solely for Licensee’s internal business purposes.
Changes to this Agreement: We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Software thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Software.
Your continued use of, or logging into, the Software following the posting of a revised or updated Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
- Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and/or that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (”Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement. If the Software contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and we accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Software, you do so entirely at your own risk and subject to the terms and conditions of use and privacy policies for such websites.Such third-party material may also include market reports and estimated home values. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Licensor, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion or efforts of the Licensor. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties whether such material is available through the Software or not.
- Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation without prior written authorization from us;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) except as expressly set forth herein, copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(i) use the Software or Documentation in violation of any law, regulation, or rule;
(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage; or
(k) use any automated techniques to scrape or compile data from the Software; or
(l) use the Software to violate CAN-SPAM as codified at 15 U.S.C. § 103 or the TCPA as codified at 47 U.S.C. § 227.
(m) use the Software to email, text, or share via notes in the Software sensitive information such as client tax forms, tax identification numbers, social security numbers, bank forms, bank account numbers, electronic signatures, and the like. Such sensitive information should only be uploaded directly to the appropriate document storage location within the Software.
- Responsibility for Use of Software. If you are an employee or independent contractor of Licensor’s such that you have received a copy of Licensor’s Technology Policies, you understand and agree that such Technology Policies include additional restrictions on your use of the Software, and Licensor’s Technology Policies are hereby incorporated into and made a part of this Agreement for such users.Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by itself and its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement. Licensee is responsible for the safety and security of any login credentials used to access the Software, and you agree that all actions occurring via your login credentials are your responsibility. You may not share your Software account or password with any other Person.
- Changes to the Software and Service Interruptions.
We may update the Software from time to time, but the Software’s contents are not necessarily complete or up-to-date due to such update(s). Any of the material in the Software may be out of date at any given time, and we are under no obligation to update such material.
Due to factors outside of our control, as well as certain factors within our control, such as software and hardware upgrades, the Software or services may be temporarily unavailable at times. You agree to hold us harmless for any such interruption, whether or not such interruption was planned and whether or not we notified You of any interruption.
- Collection and Use of Information.
(a) Licensee acknowledges that Licensor may, directly or indirectly such as through the services of Third Parties, collect and store information regarding your use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:
(i) the provision of maintenance and support services; and
(ii) security measures included in the Software
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
- Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
The Licensor name, the terms ABE, AUTOMATED BACK END, MAINFRAME REAL ESTATE and the MAINFRAME REAL ESTATE logo and all related names, logos, product and service names, designs, and slogans are trademarks of the Licensor or its affiliates or licensors. You must not use such marks without the prior written permission of the Licensor. All other names, logos, product and service names, designs, and slogans on this Software are the trademarks of their respective owners.
MAINFRAME REAL ESTATE® is protected by U.S. Reg. No. 5139910, and the MAINFRAME REAL ESTATE® logo is protected by U.S. Reg. No. 513438.
- User Contributions. The Software may contain message boards, file storage lockers, personalized web pages or profiles, forums, and other interactive features (collectively, “Interactive Services”) that allow Software users to post, submit, publish, display, store or transmit content or materials (collectively, “User Contributions”) on or through the Software.
All User Contributions must comply with the restrictions set out in this Agreement.
By providing any User Contribution through the Software, including but not limited to images, contracts, videos, and other content, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material according to your account settings and for the purpose of providing you with the Software and its features.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
- All of your User Contributions do and will comply with this Agreement.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website, and you agree that you will indemnify us per the Indemnification provision herein for any claims against us arising out of or in any way connected to your User Contributions.
- Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
(b) Licensee may terminate this Agreement by ceasing to use the Software and Documentation or by otherwise ceasing any employment, including as an independent contractor, with Licensor.
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee if Licensee breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured five (5) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if Licensee materially breaches this Agreement or if Licensee ceases working for Licensor in any capacity.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation.
- Warranty Disclaimer.
(a) You understand that Licensor cannot and does not guarantee or warrant that the Software will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Software for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SOFTWARE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE.
(b) YOUR USE OF THE SOFTWARE AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE IS AT YOUR OWN RISK. THE SOFTWARE, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE LICENSOR NOR ANY PERSON ASSOCIATED WITH THE LICENSOR MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, NEITHER THE LICENSOR NOR ANYONE ASSOCIATED WITH THE LICENSOR REPRESENTS OR WARRANTS THAT THE SOFTWARE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE, INCLUDING THE DOCUMENTATION, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SOFTWARE, DOCUMENTATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SOFTWARE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
(c) TO THE FULLEST EXTENT PROVIDED BY LAW, THE LICENSOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $500.00.
(c) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
To be clear, this indemnification includes, but is not limited to, Licensee’s indemnification of us for any claims against us based on your User Contributions, including CAN-SPAM and TCPA violations, copyright infringement, right of publicity violations, and other intellectual property violations arising from images, text, and/or videos provided via your Software access credentials.
(a) All matters relating to the Software, Documentation, this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction).
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
(c) This Agreement, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(d) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(e) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(f) No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
END OF EULA