Last updated: April 1, 2020
Please read these Terms of Service ("Terms", "Terms of Service")carefully before using the http://www.bidtracer.com website and the Bidtracer on mobile application (the "Service", "Service Provider") operated by Specialty Software Group LLC ("us", "we", or"our").
We may modify these Terms at any time so be sure to check back regularly. By continuing to use or log in to a Site after these Terms have changed, you indicate your agreement to the revised Terms. Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms, then you may not access the Service.
A. The SERVICE PROVIDER is the owner of all rights, title and interest to the software product and related materials generally known as “Bidtracer®;”
B. The CUSTOMER is of the opinion that the SERVICE PROVIDER has the necessary qualifications,experience and abilities to provide the corresponding Bidtracer® software license and related services (the “Services”) to the CUSTOMER; and
C. The CUSTOMER is agreeable to engaging the SERVICE PROVIDER to provide the Services to the CUSTOMER, on the terms and conditions as set out in this Agreement, and the SERVICE PROVIDER accepts.
1. a. Engagement
The CUSTOMER here by engages the SERVICE PROVIDER to provide the CUSTOMER with Services consisting of “web access” where the CUSTOMER will access data online. Service is a subscription to access and use the Bidtracer® software including users for use of the bid module, quote module, job module and document module.Notwithstanding the possibility of local installation of the Bidtracer®software, CUSTOMER acknowledges that the Bidtracer® software and related materials are the sole and exclusive property of the SERVICE PROVIDER and the CUSTOMER is only licensed to use the Bidtracer® software during the “Term of Agreement.”
b. Access to Customer Information
The CUSTOMER hereby acknowledges and agrees that SERVICE PROVIDER is authorized to receive access to CUSTOMER information from distributors, third party providers, and other manufacturers necessary to allow use of the Bidtracer® software and to provide the services pursuant to this Agreement..
The term of this Agreement will begin on the date of signature by the CUSTOMER and will remain in full force and effect for a period of one (1)year. After first year this Agreement will automatically renew. Upon renewal, we may increase your fees up to our then-current list price set out in our Product and Services Catalog or as mentioned in your contract. If this increase applies to you (not mentioned in your contract), we will notify you at least fifteen (15) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your contract at the end of your current term by giving a written notice.
3. Mutual Cooperation
Both parties agree to do everything necessary to ensure that the terms of this Agreement take effect. CUSTOMER agrees to allow SERVICE PROVIDER the use of its name and related trademarks to market the Bidtracer® software. CUSTOMER agrees to allow the use of email stamping by Bidtracer® for advertisement purposes.
4. Grant of License
Subject to the terms and conditions of this Agreement, SERVICE PROVIDER grants to CUSTOMER a limited, non-exclusive, non-sublicensable, non-transferable license to, as applicable, access and use of the Bidtracer® Software and related documentation solely for CUSTOMER’S internal business purpose via internet access.
5. Restrictions on Use / Content
Customer shall not, and shall not knowingly permit any employee, authorized user, or other third party to (i) use or copy the software except as provided in this Agreement; (ii) permit or allow any third party to use or have access to the software, whether by time sharing, networking, outsourcing, public dissemination, service bureau operation, or any other means; (iii) modify,translate, decipher, decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms, file formats, programming, or interoperability interfaces of the software by any means whatsoever; (iv) except as specifically provided herein,modify, adapt, or translate the software, in whole or in part, or incorporate any portion of the software into any other software product or create a derivative work of any portion of the software or reconfigure the software without the written approval of SERVICE PROVIDER; (v) except as specifically provided herein, develop or incorporate the software or any concepts contained in the software into another product for commercial or non-profit distribution, or for CUSTOMER’S internal use; (vi) remove, obscure, or modify any copyright or other notices included in the software; (vii) demonstrate, exhibit, donate, barter,loan or otherwise communicate the software to any person without written consent of SERVICE PROVIDER.
6. Compensation& Late Fees
For the Services provided by the SERVICE PROVIDER under this Agreement, the CUSTOMER will pay to the SERVICE PROVIDER compensation as mentioned in their service contract. All payments shall be made in United States dollars. In the event that the CUSTOMER fails to pay any fees when due and in addition to any other remedies allowed under Section 8 below and by law, CUSTOMER agrees to pay a finance charge computed at a rate of one and one-half percent (1½%) per month, or the maximum interest payment charge permitted by applicable law, whichever is less on any unpaid amount for each calendar month (or a fraction thereof that such payment is in default).
All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Service. CUSTOMER shall pay or reimburse SERVICE PROVIDER for all sales, use, transfer, privilege, excise, and all other taxes and all duties (including any interest or penalties), whether international,national or local, however designated, which are levied or imposed by reason of the performance by SERVICE PROVIDER under this Agreement; excluding, however,income taxes on profits which may be levied against the SERVICE PROVIDER.
8. Suspension of Service
In the event that payment is not received within one (1) week of due date, the SERVICE PROVIDER may at its sole discretion and in addition to the remedies allowed under Section 6 above, suspend the Services. If the service is local the SERVICE PROVIDER shall be granted access to the local server to discontinue Service. Unless otherwise specified in your contract, to prevent renewal of your subscription, you must give written notice of non-renewal 15 days in advance of your current term.
The SERVICE PROVIDER will be reimbursed for the any expenses incurred by the SERVICE PROVIDER in connection with providing the Services.
10. Ownership of Rights
SERVICE PROVIDER retains exclusive right, title and interest in and to the Bidtracer® software and all copies or portions thereof, including all intellectual property rights. All applicable rights to patents, copyrights, trademarks and trade secrets in the software or any modifications to it shall be and remain the property of SERVICE PROVIDER. By accepting this license, CUSTOMER has the right to use the Bidtracer® software, related materials and Services as outlined and limited in this Agreement.
11. Proprietary Rights Notices
CUSTOMER agrees (i) to respect all confidentiality notices or legends placed upon the Bidtracer® software and documentation; (ii) not to conceal from view any copyright, trademark or confidentiality notices placed on the Software media or on any output generated by the Software; and (iii) to reproduce all copyright,trademark or confidentiality notices on all copies of the Software and documentation, or any portion thereof, made by CUSTOMER as permitted here under.
12. Limited Warranty
CUSTOMER acknowledges and agrees that CUSTOMER has independently verified that the Bidtracer® software, related materials and Services are appropriate for the purposes of which CUSTOMER intends to use them, and that CUSTOMER did not rely on any skill or judgment of the SERVICE PROVIDER in such selection. SERVICE PROVIDER does not warrant that the Bidtracer® software, related materials and services will meet CUSTOMER’S requirements. SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED (STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE BIDTRACER® SOFTWARE, RELATED MATERIALS, SERVICES AND THE APPLICATION, OPERATION OR USE THEREOF.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER, FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES(INCLUDING, WITHOUT LIMITATION, LOST PROFITS) INCURRED AS A RESULT OF ANY BREACH OF THIS AGREEMENT ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE ITEMS WHICH ARE THE SUBJECT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS OR COST SAVINGS, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without prejudice to the foregoing, if SERVICE PROVIDER is nonetheless determined to be liable to CUSTOMER under or in connection with this Agreement,the entire liability of SERVICE PROVIDER, and CUSTOMER’S exclusive remedy under this Agreement shall not exceed the amount of the license fee paid here under.
14. Pricing Information
CUSTOMER agrees and acknowledges that all product pricing, availability and order information obtained using the Bidtracer® software is provided by distributors or other manufacturers and that SERVICE PROVIDER shall not be responsible for the accuracy or completeness of such information. CUSTOMER hereby waives and forever releases SERVICE PROVIDER, its parents, subsidiaries, employees and successors from all claims, demands, actions or losses of any kind, arising from the inaccuracy of any pricing, availability or order information acquired using the Bidtracer®software.
CUSTOMER agrees and acknowledges that all canned systems for Estimates and any templates provided by SERVICE PROVIDER are to be used as a guide only. Labor rates, material costs, products and hours used to create system and estimate templates are not to be used without verification by the CUSTOMER and the CUSTOMER releases the SERVICE PROVIDER from all liabilities for accuracy of these items.
16. Effect of Termination
Not withstanding the termination of this Agreement, Sections 7, 10, 12, 13, 14 and 23 shall survive termination. Neither party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms. Upon termination of this Agreement, CUSTOMER will:
(i) discontinue all use of the Bidtracer® software;
(ii) deliver to SERVICE PROVIDER or destroy the documentation and related materials in CUSTOMER’S possession, including any copies thereof;
(iii) certify to SERVICE PROVIDER within one week after termination here under that CUSTOMER has discontinued the use of the Bidtracer® software and has delivered to the SERVICE PROVIDER and/or destroyed the documentation and all copies thereof; and
(iv) Pay any outstanding balances due to the SERVICE PROVIDER.
17. Titles /Headings
Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement.
Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
19. Confidentiality of Customer Information
Except to the extent necessary to perform or enforce this Agreement, the SERVICE PROVIDER agrees not to divulge, reveal, report or use, for any purpose, any confidential information which was disclosed to the SERVICE PROVIDER by the CUSTOMER. The SERVICE PROVIDER may disclose any of the confidential information:
a. to a third party where the CUSTOMER has consented in writing to such disclosure;
b. to the extent required by law or by the request or requirement of any judicial, legislative,administrative or other governmental body. However, the SERVICE PROVIDER will first have given prompt notice to the CUSTOMER of any possible or prospective order (or proceeding pursuant to which any order may result), and the CUSTOMER will have been afforded a reasonable opportunity to prevent or limit any disclosure; or
c. to the extent that the Confidential Information ceases to be confidential through no fault of the SERVICE PROVIDER.
Neither party shall assign their Service Agreement without the prior written consent of the other party. However, such consent shall not be unreasonably withheld.
21. Capacity /Independent Contractor
It is expressly agreed that the SERVICE PROVIDER is acting as an independent contractor and not as an employee in providing the Services here under. The SERVICE PROVIDER and the CUSTOMER acknowledge that this Agreement does not create a partnership or joint venture between them.
22. Modification of Service Agreement
Any amend mentor modification of the Service Agreement or additional obligation assumed by either party in connection with the Service Agreement will only be binding if evidenced in writing signed by each party or an authorized representative of each party.
Unless otherwise provided for, all monetary amounts referred to herein will be paid in US dollars.
24. Governing Law
25. Restricted Rights Legend for Government Use
Use, duplication, or disclosure of the Bidtracer® software by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software--Restricted Rights at 48 CFR 52.227-19, as applicable.