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InspectDate Customer Agreement

This InspectDate Customer Agreement (this "Agreement" ) is entered into by and between Fixit Frog, LLC, an Oregon limited liability company doing business as "InspectDate" ( "InspectDate" , "we" , "our" or "us" ) and the customer who has registered for a lender account ( "Customer" , "you" or "your" ) to use InspectDate's proprietary software program known as "InspectDate" (as defined more fully below, the "Software" ).

INSPECTDATE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING “I ACCEPT” WHEN YOU REGISTER FOR THE SOFTWARE OR WHEN YOU LOG IN TO USE THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, INSPECTDATE WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO CUSTOMER AND YOU MUST NOT USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR CUSTOMER’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 CUSTOMER DID NOT ACQUIRE OR ACCESS LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF INSPECTDATE’S SOFTWARE.

Definitions

  1. "Administrator Permissions" means access and permissions to use the Software for the purposes of (a) creating, modifying, and deleting Authorized User accounts and (b) utilizing such other features and functionality InspectDate may make available from time to time to Administrative Users of the Software.
  2. "Administrative User" means an Authorized User that Customer designates with Administrator Permissions.
  3. "Authorized Users" means all individual natural persons authorized by Customer to access and use the Software.
  4. "Customer Data" means all data hosted by InspectDate in connection with the Software that Customer or its Authorized Users create, manually key, upload, or record using the Software, including data stored in Authorized Users’ user profiles and data regarding scheduling and results of inspection requests.
  5. "Defect" means a failure of the Software to substantially conform to the functional specifications set forth in the Documentation.
  6. "Documentation" means user manuals, technical manuals and any other materials provided by InspectDate, in printed, electronic or other form, that describe best practices or the installation, operation, use, features and functionality, or technical specifications of the Software.
  7. "EULA" or "End User License Agreement" means the End User License Agreement available at EULA Agreement .
  8. "Feedback" means comments or suggestions provided by Customer or an Authorized User regarding the possible creation, modification, correction, improvement or enhancement to the Services, including without limitation ideas for the development of new products and services and any customer testimonials submitted to InspectDate.
  9. "Intellectual Property Rights" means any and all intellectual property or proprietary rights, including without limitation patent, copyright, trademark, service mark, trade secret, moral, and contract rights in any country or jurisdiction in the world, whether or not registered or registerable, and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues of them now or hereafter in force.
  10. "Losses" means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers.
  11. "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
  12. "Projects" means real property finance, construction, and development projects that Customer uses the Software to schedule, track, and manage inspections in connection with.
  13. "Representatives" means, with respect to a party, such party’s affiliates, directors, officers, employees, independent contractors, and other agents or representatives. Notwithstanding the foregoing, Customer shall not be deemed a Representative of InspectDate, and InspectDate shall not be deemed a Representative of Customer.
  14. "Software" means InspectDate’s proprietary software program known as "InspectDate", including the Documentation and all Updates thereto.
  15. "Support Services" means the services related to Software support described in Section 4 of this Agreement.
  16. "Term" means the term of this Agreement.
  17. "Update" means any update, bug fix, patch, correction, or subsequent release of the Software that InspectDate makes generally available at no additional charge to all licensees of the Software.

SOFTWARE LICENSE

  1. License
    • Subject to and conditioned upon Customer’s timely payment of the fees described in the online registration form submitted by Customer and Customer’s strict compliance with all terms and conditions set forth in this Agreement and the EULA, InspectDate hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license, during the Term, to use and access the Software, solely by and through its Authorized Users.
  2. Authorized Users
    • Customer shall not permit any person other than an Authorized User to access or use the Software. Customer may designate only the following individuals as Authorized Users: (a) employees and independent contractors of Customer, and (b) employees and independent contractors of Persons with whom Customer has a business relationship related to the Projects. Customer shall not provide any individual other than its own employees with Administrator Permissions to the Software. Each individual natural person shall be deemed a separate Authorized User for purposes of this Agreement.
  3. Restrictions
    • Except as expressly permitted in this Agreement, Customer may not sublicense its rights hereunder. Customer’s and its Authorized Users’ use of the Software is subject the term of the InspectDate End User License Agreement available at EULA (“EULA”), which is incorporated herein and made a part of this Agreement.
  4. Modifications and Updates
    • Customer understands and agrees that InspectDate may make modifications and updates to the Software from time to time in its sole discretion. InspectDate may determine in its sole discretion whether to provide such modifications and updates to Customer as an Update at no additional charge, or whether such modifications and updates will be issued as a separate or new product or an upgrade that is available only for an additional charge.
  5. Responsibility for Use
    • Customer is responsible and liable for all acts or omissions of its Authorized Users and all uses of the Software through access thereto provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
  6. Unique Log-in Credentials
    • Customer shall maintain unique log-in credentials for each Authorized User. Customer shall not permit any Authorized User to share or disclose his or her log-in credentials with or to any other individual or entity, even if such other individual is also an Authorized User. Log-in credentials may not be transferred from one Authorized User to another Authorized User. Customer shall promptly terminate the log-in credentials for any person ceases to be an Authorized User because such individual is no longer employed by Customer or because of any other reason.

PRICING AND PAYMENT

  1. Fees
    • In consideration for the Software license granted hereunder, Customer shall pay InspectDate the fees described in the online registration form submitted by Customer.
  2. Payment Terms
    • Unless different payment terms are set forth in the applicable online order form submitted by Customer, payment shall be due within thirty (30) days of the date of invoice. InspectDate reserves the right to terminate or suspend Customer’s access to the Software in the event of nonpayment of any undisputed amount. A monthly late fee of 1.5% per month will be assessed on undisputed unpaid balances over fifteen (15) days past due.
  3. Disputed Amounts
    • Any disputed charges must be presented to InspectDate in writing within fifteen (15) days of invoice, and the parties agree to cooperate in good faith to promptly resolve any disputed invoice within five (5) days of such notice of dispute. In the event Customer disputes any amounts invoiced in good faith, the undisputed amount shall be paid when due, and only disputed amounts shall be withheld pending resolution of the dispute.
  4. Fee Increases
    • InspectDate may increase or change the fees for the Software by providing Customer with notice of such increase or change at least forty-five (45) days prior to the effective date of such increase or change. Customer’s sole alternative to any fee increase shall be to terminate this Agreement in accordance with Section 7.3.
  5. Taxes
    • The prices specified in this Agreement are exclusive of any sales, use, excise, or similar taxes, and of any export and import duties. Customer agrees to pay and otherwise be fully responsible for, and indemnify and hold InspectDate harmless from and against all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, InspectDate’s income, revenues, gross receipts, personnel or real or personal property or other assets.

SUPPORT AND MAINTENANCE

  1. Scope of Support Services.
  2. During the Term, InspectDate shall provide Customer with the following Support Services:
    • Subject to Customer’s maintaining suitable environments and systems that are compatible, InspectDate shall provide, install, and implement Updates that are released by it.
    • Customer and its Authorized Users will have access to telephone and email technical support, 8:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday, excluding holidays. InspectDate’s support center can be contacted via email at support@inspectdate.com or telephone at +1 (503) 662-8506.
  3. Submission of Issues for Resolution.
  4. To receive support to resolve a Defect, Customer shall:
    • Subject to Customer’s applicable security requirements, provide InspectDate with access to and use of all systems and environments determined necessary by InspectDate to provide timely Support Services pursuant to this Agreement.
    • Follow procedures and recommendations provided by the InspectDate support center in an effort to correct problems, including sending files and data requested by the InspectDate support center.
    • To the best of its abilities, read, comprehend and follow operating instructions and procedures as specified in, but not limited to, the Documentation and other correspondence related to the Software.
    • Notify InspectDate of a Defect in accordance with InspectDate’s then current problem reporting procedure, and provide all available information requested by InspectDate related to the Defect, including, if applicable: (a) error messages and indications that Customer received when the malfunction occurred; (b) what the user was doing when the malfunction occurred; (c) what steps Customer has taken to reproduce the malfunction; (d) what steps Customer may have already taken to solve the problem; and (e) system logging.
  5. Exclusions
  6. InspectDate shall have no obligation to support, and the Support Services do not include resolution of, Defects caused by any of the following:
    • Customer’s negligence, abuse, misapplication, mis-configuration, modifications to, or use of the Software other than as specified in the Documentation, or other problems beyond the reasonable control of InspectDate.
    • Use of the Software with any hardware, operating system version or network environment that is not supported by InspectDate or
    • Customer’s failure to maintain systems and environments that are compatible with Updates.
    Additionally, the Support Services do not include any of the following:
    • Configuration of other applications required to access the Software, including, but not limited to Microsoft Windows, Microsoft IIS, SMTP, Microsoft SQL Server, firewalls, or networking components.
    • Version upgrades of 3rd party software incorporated in or used in connection with the Software, or
    • Any version or release of the Software that InspectDate may issue as a separate edition, including an alternative or premium version of the Software for which additional fees may be required to access.

INTELLECTUAL PROPERTY

  1. InspectDate IP
    • Customer acknowledges and agrees that the Software is provided under license, and not sold, to Customer. InspectDate shall own and retain all right, title, and interest in and to the Software, including all Intellectual Property Rights associated therewith, except as expressly granted to Customer in this Agreement. Customer shall use commercially reasonable efforts to safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse, modification, decompilation, reverse engineering, or unauthorized access. Customer shall promptly notify InspectDate if Customer becomes aware of any infringement of InspectDate’s Intellectual Property Rights in the Software and fully cooperate with InspectDate in any legal action taken by InspectDate to enforce its Intellectual Property Rights.
  2. Feedback
    • Customer grants InspectDate the right to use Feedback provided by Customer or its Authorized Users. Customer agrees information disclosed by InspectDate during discussions related to Feedback shall be considered InspectDate Confidential Information. Customer grants to InspectDate a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, without restriction, remuneration, or attribution of authorship to use, publish and disclose Feedback in any manner InspectDate chooses and to display, perform, copy, make, have made, use, sell, and otherwise commercially exploit the Feedback in any manner and via any media that InspectDate chooses without reference to the source. Customer acknowledges that Feedback disclosed to InspectDate under this Agreement is only intended as suggestions and is not intended to be binding upon InspectDate in any way.
  3. Trademarks and Publicity
    • Customer hereby grants InspectDate a worldwide right and license during the Term of this Agreement to use, publish, and display Customer’s name and marks on InspectDate’s website and in its marketing materials solely for the purpose of identifying Customer as a customer of InspectDate. InspectDate’s use of Customer’s marks shall be in the same manner and quality of use as used by Customer and shall be subject to any written trademark usage guidelines or restrictions Customer provides to InspectDate from time to time. Customer reserves the right to review and request InspectDate not to use Customer’s marks for a specific use hereunder.

CONFIDENTIALITY

  1. Definition
    • "Confidential Information" means, with respect to a party (the “Disclosing Party”), any information, regardless of form or media or method of disclosure, about such party or its business or technology, or about third parties in such Disclosing Party’s possession or care, that the other party (the “Receiving Party”) knows or should reasonably know, due to the nature of the information or the circumstances under which it was learned or disclosed, is deemed confidential by the Disclosing Party. Confidential Information includes reports and analyses that are derived from Confidential Information, even if the Receiving Party contributed to their creation. Notwithstanding the foregoing, Confidential Information excludes: (i) information that is or becomes generally available to the public through lawful means and without breach of the Receiving Party’s confidentiality obligations; (ii) information subsequently and rightfully received by the Receiving Party from third parties without any obligation of confidentiality; and (iii) information that was known to and reduced to writing by the Receiving Party before the date of this Agreement; (iv) information that is independently developed by the Receiving Party without use of or reference to any of the Disclosing Party’s Confidential Information. For clarity, information and data that Customer’s Authorized Users enter into the Software shall be deemed Confidential Information of Customer.
  2. Restrictions on Use and Disclosure
    • The Receiving Party agrees that the Disclosing Party’s Confidential Information will be used only for exercise of its rights and performance of its obligations under this Agreement. The Receiving Party will not disclose or distribute the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, except to its Representatives who (a) have a need-to-know such Confidential Information for purposes of performing this Agreement, (b) have been informed of the confidential nature of such Confidential Information, and (c) have agreed in writing or are otherwise legally bound to confidentiality and non-use restrictions at least as restrictive as those contained in this Section 6. All Confidential Information is and will remain the sole exclusive property of Disclosing Party or the applicable third party, as the case may be. Receiving Party will promptly notify Disclosing Party if Receiving Party becomes aware of any unauthorized disclosure or use of Confidential Information of the Disclosing Party and will cooperate with Disclosing Party to assist it in regaining possession of the Confidential Information and to prevent its further unauthorized disclosure or use.
  3. Disclosure Required by Law
    • This Section 6 shall not prohibit disclosure of Confidential Information to the extent required by law or valid order of a court or other governmental authority; provided, however, that if Receiving Party is subpoenaed or otherwise compelled by valid law or a court order to disclose Confidential Information, prior to disclosure, Receiving Party shall first give prompt written notice to Disclosing Party sufficiently in advance to permit Disclosing Party to contest the subpoena or requested disclosure and/or seek a protective order, and Receiving Party shall provide Disclosing Party with reasonable assistance with any such action.

TERM AND TERMINATION

  1. Term of this Agreement
    • This Agreement shall commence when Customer registers for use of the Software and shall continue until it is terminated by either party in accordance with this Agreement.
  2. Termination
    • Either party may terminate this Agreement, effective upon written notice to the other party if the other party breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
  3. Termination for Convenience
    • Customer may terminate this Agreement for any reason or no reason by providing written notice of such termination, which termination shall be effective thirty (30) days after such notice.
  4. Term of this Agreement
    • This Agreement shall commence when Customer registers for use of the Software and shall continue until it is terminated by either party in accordance with this Agreement.
  5. Termination due to Account Inactivity
    • If Customer does not create any new inspection requests within the Software for a period of six (6) months or more, InspectDate shall send Customer notice of account inactivity. If, within the six (6) months following such notice of account inactivity, Customer either (a) creates a new inspection request within the Software or (b) notifies InspectDate in writing of Customer’s intention to continue using the Software, then this Agreement shall continue in full force and effect. If Customer does not do either of the foregoing within six (6) months following the notice of account inactivity, this Agreement shall automatically terminate upon expiration of such six (6) month period.
  6. Post Termination Rights and Responsibilities
    • Upon termination of this Agreement for any reason, (a) InspectDate may immediately disable Customers’ and its Authorized Users’ access to the Software, (b) any payment obligations that accrued prior to termination will immediately become due and payable, (c) all rights and obligations of the parties under this Agreement shall immediately terminate except as expressly provided herein, and (d) each party shall return to the other all property and Confidential Information of the other party in its possession or control. The termination of this Agreement, regardless of how it occurs, will not relieve either of any obligations that have accrued prior to termination, including payment obligations. Where the context, nature, or express terms of any provision indicates intent that it shall survive the termination or expiration of this Agreement, then it shall survive the same. This includes, but is not limited to, the following provisions: this Section 7 and Sections 5 (Intellectual Property), 6 (Confidentiality), 8 (Representations and Warranties), 9 (Liability and Indemnification), and 10 (General).
  7. Data Rights Upon Termination.
    • InspectDate shall use reasonable commercial efforts to retain a copy of Customer Data for a period of at least six (6) months following termination of this Agreement, after which InspectDate may destroy the Customer Data (including all backup copies). Except for the foregoing covenant, InspectDate shall have no obligation to retain the Customer Data following termination of this Agreement.

REPRESENTATIONS AND WARRANTIES

  1. General
    • Each party represents, warrants and covenants to the other that: (i) it is a duly organized business entity validly existing under the laws of its respective jurisdiction of organization; (ii) it has the full power and authority to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement is a legal, valid, and binding obligation, enforceable in accordance with its terms; (iv) the signing of this Agreement and the performance by each party of its obligations hereunder will not: (a) breach any agreement with any third party, or give any person the right to accelerate any obligation; (b) violate any law, judgment, or order; or (c) require the consent, authorization, or approval of any person, including without limitation any governmental body.
  2. Limited Warranty
    • InspectDate warrants that, during the Term, the Software will operate without material failures and in substantial conformity with the functional descriptions provided by InspectDate in writing, if any.
  3. Warranty Exclusions
    • The foregoing limited warranties are void if failure of the Software results from: (i) the use thereof in connection with incompatible software or hardware; (ii) accident, abuse, misapplication, unauthorized use, or misuse of the Software, including use other than as authorized in this Agreement and the EULA; (iii) any modifications to the Software not authorized or performed by InspectDate; or (iv) failure of Customer to maintain systems and environments compatible with any Update to the Software.
  4. Limited Remedy
    • If, during the Warranty Period, the Software fails to perform in accordance with the limited warranty set forth above, and such failure is not excluded as provided above, InspectDate shall, upon written notice from Customer with information sufficient to enable InspectDate to reproduce or verify the error, at InspectDate’s sole cost and expense: (i) take reasonably commercial efforts to correct errors and material failures; (ii) replace the Software; or (iii) terminate this Agreement and refund the pro-rated fees paid from the day of notice to termination, subject to Customer’s ceasing all use of and, if requested by InspectDate, returning to InspectDate all copies of the Software. THE FOREGOING IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY PROVIDED HEREUNDER.
  5. DISCLAIMER OF WARRANTIES
    • EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INSPECTDATE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SECURITY, ACCURACY, OR ANY IMPLIED WARRANTIES ARISING OUT OF THIS AGREEMENT. INSPECTDATE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS ARISING FROM CUSTOM OR TRADE USAGE OR FROM COURSE OF DEALING OR PERFORMANCE. WITHOUT LIMITATION TO THE FOREGOING, INSPECTDATE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OPERATE WITHOUT INTERRUPTION, OR BE PROVIDED ERROR FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

LIABILITY AND INDEMNIFICATION

  1. Limitations of Liability
    • IN NO EVENT SHALL INSPECTDATE BE LIABLE TO CUSTOMER OR TO ANY END USER OR OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA OR EQUIPMENT DOWNTIME, EVEN IF INSPECTDATE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE THEORY OF LIABILITY UNDER WHICH ANY SUCH DAMAGES ARE SOUGHT. IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON INSPECTDATE UNDER THIS AGREEMENT FOR ANY REASON WHATSOEVER, THE AGGREGATE AMOUNTS PAYABLE BY INSPECTDATE BY REASON THEREOF SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CLAIM FOR WHICH SUCH DAMAGES ARE SOUGHT. THE LIMITATIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges that the limitations of liability contained in this Agreement are an essential element of the Agreement between the parties and that in the absence of such limitations, the pricing and other terms set forth in this Agreement would be substantially different.
  2. InspectDate Indemnity Obligations
    • InspectDate shall indemnify, defend and hold harmless Customer and its Representatives for, from and against any and all Losses arising from (a) any breach by InspectDate of this Agreement or (b) any claims or allegations that the Software or its use by Customer as contemplated in this Agreement infringes or misappropriates the Intellectual Property Rights of any third party, except for claims or allegations arising from (i) Customer’s access or use of the Software with machines, systems, or devices not approved by InspectDate; (ii) modifications to the Software not made or authorized by InspectDate; or (iii) use of the Software not in accordance with the Documentation.
  3. Customer Indemnity Obligations
    • Customer agrees to defend, indemnify, and hold harmless InspectDate and its Representatives for, from, and against any and all Losses arising from (a) any breach by Customer of this Agreement; or (b) any claims or allegations of a third party that the Software infringes or misappropriates any third-party Intellectual Property Rights if arising from (i) Customer’s access or use of the Software with machines, systems, or devices not approved by InspectDate; (ii) modifications to Software not made or authorized by InspectDate; or (iii) use of the Software not in accordance with the Documentation.
  4. Indemnification Procedures
    • The party to be indemnified (the “indemnitee”) under this Agreement shall (a) notify the other party (the “indemnitor”) in ‎writing of a claim promptly upon learning of or receiving the same and (b) provide the indemnitor with reasonable assistance requested, at the indemnitor’s expense, for the defense and settlement, if applicable, of any ‎claim. The indemnitee’s failure to perform the foregoing obligations shall not relieve the indemnitor of its obligations hereunder except to the extent that the indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. After receipt of notice, the indemnitor shall be entitled, if it so elects, at its own cost, risk and expense: (i) to take control of the defense, investigation, and compromise or settlement, if applicable, of such lawsuit or action; and (ii) to employ and engage attorneys of its own choice to handle and defend the same. If the indemnitor fails to assume the defense of such claim within ten (10) business days after receipt of notice of the claim, the indemnitee against which such claim has been asserted will (upon delivering notice to such effect to the indemnitor) have the right to undertake, at the indemnitor’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnitor; provided, however that such claim shall not be compromised or settled without the written consent of the indemnitor. In the event the indemnitee assumes the defense of the claim, the indemnitee will keep the indemnitor reasonably informed of the progress of any such defense, compromise or settlement. Notwithstanding the foregoing, the indemnitee shall be entitled to conduct its own defense at the cost and expense of the indemnitor if the indemnitee establishes that the conduct of its defense by the indemnitor would reasonably be likely to prejudice materially the indemnitee due to a conflict of interest between the indemnitee and the indemnitor; and provided further that in any event, the indemnitee may participate in such defense at its own expense.

GENERAL

  1. Relationship of Parties
    • The relationship of the parties is that of independent contractors. This Agreement is not intended to create and shall not be construed as creating between the parties a relationship of principal and agent, joint venturers, partners, employer-employee or any other similar relationship, the existence of which is hereby expressly denied, nor shall either party be considered in any sense an affiliate or subsidiary of the other. Neither party shall have any authority to create or assume in the other party’s name or on its behalf any obligation, expressed or implied, or to act or purport to act as the other party’s agent or legally empowered representative for any purpose whatsoever, except as expressly provided for herein.
  2. No Third Party Beneficiaries
    • 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 or entity any legal or equitable right.
  3. Equitable Remedies
    • The parties agree that any material breach of this Agreement by either party or its Representatives may cause immediate and irreparable harm, for which monetary damages would be inadequate or difficult to ascertain. The parties therefore agree that upon the existence of any such breach or threatened breach, the non-breaching party may immediately seek a temporary restraining order or other appropriate form of equitable relief, without posting a bond or other form of security. This paragraph will not limit either party’s rights to obtain monetary damages in addition to or as substitution for such equitable relief.
  4. Notices
    • All notices permitted or required under this Agreement shall be in writing and sent by electronic mail, if to Customer, to the then-current email addresses contained in the user profiles of Customers’ Administrative Users, and, if to InspectDate, to support@inspectdate.com. Notice delivered by email shall be deemed given unless the party sending such notice has reason to believe the notice was not actually delivered (e.g., if the sender received a failed delivery notification). In the event a party has reason to believe that its notice sent via email was not actually delivered, a copy of such notice shall also be sent via personal delivery, nationally recognized overnight courier service, or first-class mail, and shall be deemed given when received, if delivered by hand or sent by a nationally recognized overnight courier, or three (3) business days after the date mailed, if sent by first-class mail. Any such notice to Customer shall be sent to the then-current address set forth in any of Customer’s Administrative Users’ user profiles, and any such notice to InspectDate shall be sent to FixitFrog, LLC, PO Box 25001, Portland, OR 97298, Attn: Patrick Hess. Customer may update its email address or physical mailing address to which it receives notices by editing such information within the Software user profiles of its Administrative Users; furthermore, either party may update its email address or physical address for notices by providing written notice of such address to the other party in accordance with this paragraph.
  5. Severability
    • If any term, provision or covenant or condition of this Agreement is held invalid, void or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect.
  6. Governing Law Venue
    • This Agreement shall be controlled by and construed under the laws of the State of Oregon. Any action brought to enforce or interpret the terms of this Agreement shall be brought in the federal or state courts located in Multnomah County, Oregon, and the parties hereby waive any claim or defense that such forum is not convenient or proper. Each party hereby agrees that any such court shall have personal jurisdiction over it.
  7. Entire Agreement
    • This Agreement, together with the EULA, constitutes the entire agreement between the parties. Any and all prior agreements or representations respecting the subject matter of this Agreement, whether written or oral, expressed or implied, are superseded by this Agreement.
  8. Waiver
    • No waiver of any breach or default shall constitute a waiver of any subsequent breach or default, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy operate as waiver of such right or remedy.
  9. Force Majeure
    • Any delay in the performance of any duties or obligations of either party (except the payment of money owed) shall not be considered a breach of this Agreement if the delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of the party if the party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
  10. Assignment
    • Either party may assign its rights or obligations hereunder to a third party, provided that notice of such assignment is given in advance to the non-assigning party and the surviving or acquiring company has agreed in writing to be bound by the terms of this Agreement.
  11. Interpretation
    • The headings used in this Agreement shall not be considered in the interpretation of this Agreement.