User License Agreement
Welcome to the Bidrrr LLC (“Bidrrr”) user community. To have reached this point, you have been given an information regarding Bidrrr’s products, including without limitation the Real Estate Property integration Solution (“REPiS”) Program, you have provided certain User Identifying Information, and you have indicated a desire to obtain a license and establish a User ID and Password to access the Bidrrr System and to obtain a License to use REPiS, all in accordance with the terms of this Agreement, which User ID and Password are understood and agreed to be personal to User and which constitute Confidential Information (as hereinafter defined), you represent that you are the designated “Individual User” identified on the User Identification Information Page and that all other information provided to Bidrrr in any form, including without limitation on such User Identification Information Page, regarding User’s name, contact information, company affiliation, credit card information and authorization and other materials and information furnished to Bidrrr (“User Identifying Information”) is and shall be accurate in all respects and that you have been authorized by your company, if applicable, to enter into this Agreement. By clicking "I Accept" below, User represents that User has read, or at least been given the opportunity to read, all of the terms and conditions of this Agreement, including all terms and conditions set forth or incorporated by reference herein, has had the opportunity to confer with legal counsel of User’s choosing with respect to such terms, and agrees to become bound by such terms and conditions, including without limitation the License, as further described and defined below, granted to User and all terms, conditions, restrictions and covenants that apply to this Agreement or otherwise the use of the Program, as defined and described herein, and access to the Bidrrr System, as defined and described herein and that by so clicking “I Agree” below, it is your intent that such action constitutes an electronic signature so authenticated. If User does not agreement to the terms and conditions of this Agreement, User may click “I Do Not Accept” below, in which event you will be redirected to Bidrrr’s home screen or such other webpage as Bidrrr may select, all without any grant of rights to obtain a User ID or Password or to access the Bidrrr System.
THIS USER LICENSE AGREEMENT (this “Agreement”) is made by and between Bidrrr LLC, a Texas limited liability company (“Bidrrr”) and the authorized and designated person approved by Bidrrr as its licensee, to whom Bidrrr has issued the User ID and Password used to access the Bidrrr System and this Agreement, and for whom User Identifying Information has been provided to Bidrrr electronically or by any other means or method, subject to and in accordance with the terms of this Agreement (“User”) as of the earlier of the date which User may have been allowed to access the Bidrrr System and the Program or the date upon which Bidrrr issued to User the User ID and Password (unless a different Effective Date is agreed to by Bidrrr and User in writing, the “Effective Date”), pursuant to which Bidrrr and User have agreed to the following
WHEREAS, Bidrrr has developed a compilation of computer programs, electronic documentation and other electronic materials made available to User for access on this website and for the generation of certain functional screens, information, reports, computations, communications and other material that User may download, compile, or otherwise capture on User’s own computer systems or by other methods (collectively, the “Program”), as defined and further described in subsection 1.01(b) of this Agreement, which is housed on computer, telecommunications and other equipment operated by Bidrrr (the “Bidrrr System”), as defined and further described below; and
WHEREAS, User is actively involved in the real estate business, desires to obtain a license to use the Program by accessing the Bidrrr System, and Bidrrr is willing to grant such a license as a personal right to User, all in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration received and to be received, the sufficiency of which is hereby acknowledged by the parties, Bidrrr and User agree as follows:
1. DEFINTIONS.
1.01. As used in this Agreement:
(a) “Bidrrr System” means Bidrrr’s proprietary computer systems, together with all hardware, firmware, bios and other software embedded in such hardware, operating system software, database management software, broadband internet connections and equipment utilized to implement such connections, and other equipment and software proprietary to Bidrrr or third parties who have granted rights to Bidrrr utilized to operate the Program and/or to access such resources, other than the User System, which Bidrrr System shall be physically maintained by Bidrrr and not made physically accessible to User under any conditions;
(b) “Program” means certain computer software and related systems designed to be accessed by internet and executed by real estate professionals, including User, together with User’s business associates who have entered into license agreements independently with Bidrrr (each, an “Other Participant” or, collectively, “Other Participants”), for the purposes thereof intended by Bidrrr, all of which is proprietary to Bidrrr or third parties who have granted rights to Bidrrr, which Program is intended to be used by executing commands and instructions and otherwise using the Program as intended, directed and specified by Bidrrr and which will be and remain on the Bidrrr System or such third parties, which Program is known as Real Estate Property integration Solution, current version REPiS.2018.1.00 and which User understands and agrees shall be subject to update, modification, improvement, enhancement, revision, error correction or other changes as Bidrrr may choose, in its sole discretion at any time (the “Updates”);
(c) “User System” means such hardware, operating system software, broadband internet access software, hardware and facilities, and other materials necessary to properly operate the Program and conduct the intended use thereof, as may be specified by Bidrrr, which specifications may be modified by Bidrrr from time to time during the term of this Agreement in connection with the issuance of one or more Updates or for any other reason in the sole discretion of Bidrrr, which User System shall not exceed a single personal computer system and a single mobile device, such as a smart phone or tablet to be furnished by User and for the sole use of User and no other person, and;
(d) “Site” means the User's address identified by the User to Bidrrr or such other secure location as User may choose, exercising reasonable caution to maintain the security of the Program, the User ID and Password issued to User, and all resources used to access the Bidrrr System.
2. PAYMENT; LICENSE GRANT AND LIMITATIONS; RESTRICTIONS ON USE AND DISCLOSURE; PAYMENT
2.01. Subject to the payment by User, which payment shall be immediately due and payable to Bidrrr by authorized charge by Bidrrr to the credit card(s) designated by User, of all charges, prices and fees specified by Bidrrr as of the date they are incurred and immediately accrued (collectively, the “Fees”), Bidrrr hereby grants to User a personal, non-exclusive, non-transferable, revocable license (the “License”) to access the Bidrrr System on a “software as a service” mode and execute the functions and features of the Program remotely on the Bidrrr System in the United States for the intended purposes designated by Bidrrr utilizing a web browser compliant with technical specifications designated by Bidrrr and operating on the User System at the Site in accordance with this Agreement, and User agrees to provide certain information to Bidrrr according to subsection 2.04 below. Any sum due Bidrrr hereunder that is not collectible by Bidrrr charging such sum to User’s designated credit card(s) or otherwise paid when due shall thereafter bear interest until paid at a rate of interest equal to the lesser of (a) eighteen percent (18%) per annum, compounded daily, or (b) the maximum non-usurious rate of interest allowed by applicable law. User understands and agrees that in the event that Bidrrr is unable to validate the credit card information, or such other payment method information, provided by User, Bidrrr may suspend or terminate User’s right to access the Bidrrr System, suspend or terminate the License, and/or suspend or terminate User’s right to use all or part of the Program. Unless User provides Bidrrr with a valid tax exemption, User shall pay directly or reimburse Bidrrr for all taxes, assessments, permits and fees, however designated, which are levied upon this Agreement or the access to the Bidrrr System or use of the Program, or there in any way otherwise relating thereto, excluding franchise taxes and taxes based upon Bidrrr’s income.
2.02. The provisions of this subsection 2.02 shall in no way limit restrictions and covenants provided for elsewhere in this Agreement. In no event shall User copy or attempt to make any copy of all or any part of the program, except as necessary to use the Program utilizing a web browser and other equipment and software specified by Bidrrr, which shall reside on the User System and to access and store information generated by the Program and intended to be so stored by Bidrrr on internal memory that is part of the Bidrrr System (and on backup and archival equipment operated or controlled by Bidrrr consistent with industry standards for disaster recovery and other industry standards for prevention of the loss of critical data). Use of the Program under the License shall be for User’s exclusive use consistent with the intended use of the Program designated by Bidrrr, and in no event shall User attempt to download the Program or deliver copies of the Program, or any portion thereof, or provide access to the Program or any of its functions, to any third party, other than reports and information accessible by User and to provide reports and information to one or more third parties, all consistent with the intended use of the Program designated by Bidrrr, subject to applicable restrictions provided for in this Agreement, and without deletion of any proprietary rights statements or other legends placed thereupon, designated by Bidrrr. User shall access the Bidrrr System and use the Program only at the Site on the User System, which shall be connected to a secure internet connection (and not any public internet connection), meeting or exceeding such specifications as may be designated by Bidrrr, only for the purposes stated herein and the intended purposes designated by Bidrrr and which connection shall be protected using commercially reasonable means, which shall be no less than means employed by User to protect its most sensitive information. User shall in no event be entitled to access the Bidrrr System or to use the Program for the purpose of evaluation, examination or copying of the Program or any aspect thereof, including without limitation “look and feel,” functionality, methodologies, algorithms or execution of the same, technical specifications, including without limitation details regarding the Bidrrr System or any specifications for the User System (the latter other than as necessary to obtain, configure, install and test the User System), or performance specifications or metrics relating to performance of the Program, or in any other way in connection with the creation by User or any third party of software systems with comparable functionality, in whole or in part, with the Program or any portion thereof.
2.03. In no event shall the License be deemed to convey any title to the Program, the Bidrrr System, or any portion thereof, such title shall remain at all times with Bidrrr or third parties who have granted rights to Bidrrr, and User shall have no rights with respect to the Program, including without limitation any Updates incorporating suggestions or ideas supplied or made by User, the Bidrrr System or any intellectual property or other property embodied therein as a result of the License or other rights granted in this Agreement.
2.04. User will use reasonable efforts to complete and deliver to Bidrrr reports relating to any material problems, errors, “bugs,” functional inadequacies, or other issues encountered by User in connection with access to the Bidrrr System and/or use of the Program and other information requested by Bidrrr in the format specified by Bidrrr, such as through a web site or by electronic mail. All information relating to the foregoing shall be deemed Confidential Information (as hereinafter defined) and shall become, and remain, the property of Bidrrr, whether or not leading to any Update(s).
2.05. Bidrrr may make such Updates and other modifications to the Program, the Bidrrr System and means of accessing the Bidrrr System, and the specifications for the User System, as Bidrrr deems necessary or useful, even if such modifications result in the loss of data collected by the Program in connection with its use by User. User understands and agrees that it is contemplated that Updates are expected to occur from time to time and that User is encouraged to make suggestions, recommendations and other observations regarding the Development Materials to Bidrrr, but Bidrrr shall not be obligated to make any Update and/or make any such Update to User or correct any errors in the Program or the Bidrrr System or the specifications for the User System.
2.06. The License and the associated rights granted herein to use the Program and access the Bidrrr System are for the sole purpose of using the Program in accordance with the terms of this Agreement, and that the License to the Program, together with the specifications for the Bidrrr System and the User System is licensed, not sold, to User for use only by User for User’s internal purposes, and the License granted to User only entitles User to access and make use of the Bidrrr System and the Program for the intended functions designated by Bidrrr, as defined by the type of License obtained by User, under the terms of this Agreement, all of which is subject to timely payment of all Fees to Bidrrr by User. The Program may also subject to the terms of other agreements between User and Bidrrr or the terms of agreements between Bidrrr and certain third parties who have provided rights to Bidrrr for portions of the Program or for resources that are part of the Bidrrr System and necessary for the operation and use of the Program. Only individual users specifically authorized by Bidrrr who have agreed to the terms and conditions of this Agreement and given a User ID and Password may access the Bidrrr System and use Program, download reports, take screen shots of images of any kind generated and rendered by the Program, or any other function or part of the Program and/or related materials from this website, and all such use by the User shall be subject to the restrictions set forth in this Agreement. User agrees not to disclose the User ID or Password assigned by User by Bidrrr to any other person, or allow any other person to use or even observe the use of the Program and/or related materials licensed hereunder to User by Bidrrr for any purpose, and User understands and agrees that any such disclosure or allowance shall constitute a material breach of this Agreement.
3. USER SYSTEM; SUPPORT
3.01. User shall (i) provide the User System, maintain the User System to ensure compliance with specifications designated by Bidrrr, and make such modifications to the User System as may be designated by Bidrrr from time to time, and (ii) from time to time provide Bidrrr with comments and suggestions on the functionality and performance of the Program and the Bidrrr System. User shall have no right, and shall make no attempt to, pledge, loan, mortgage or attempt in any other manner to dispose of the Program or to suffer any liens, encumbrances, or legal process to be incurred or levied on the Program.
3.02. Bidrrr will support to User during the term of this Agreement, consisting only of telephone or email communication and other correspondence as designated by Bidrrr and during regular business hours, all in accordance with Bidrrr's policies. Users can submit queries, report problems and make other support inquiries by emailing to info@bidrrr.com, and if there any system related issues can also attach a copy of the screen shot taken from a smart phone or other method and provide an explanation of the issue and provide contact information.
4. CONFIDENTIALITY.
4.01. For the purposes of this Agreement the term “Confidential Information” shall mean the existence and terms of this Agreement the Program, the specifications for the Bidrrr System and the User System and all materials and information relating thereto in any way, including without limitation with any and all information, know-how, technology, technical, functional and performance specifications, operating environment specifications, and documentation relating to Program, the Bidrrr System and/or the User System, as well as the characteristics, features and existence of the Program and any and all notes, mental impressions and other information created or gathered by User relating in any way to Bidrrr and/or the Program, the Bidrrr System, the User System or their use, together with all information collected and/or retained on the Bidrrr System, as contemplated in this Agreement, all of which, as between Bidrrr and User, shall be deemed proprietary to Bidrrr and subject to protection under applicable laws, in the United States and throughout the world, of patent, trademark (state, federal and common law), trade secret (state and federal) and all other laws intended to protect intellectual property rights and other property rights, all of which rights shall be deemed to belong to Bidrrr for all purposes, and in the event that it is determined in any way that any such rights do not belong to Bidrrr, User hereby assigns irrevocably and without reservation of any kind any and all such rights that User may possess now or at any time.
4.02. User may use the Confidential Information and related information received from Bidrrr and all other information relating to the Program, the Bidrrr System, and the User System and the use thereof contemplated hereunder, including without limitation both (i) written information relating to such Program Materials, the Bidrrr System and the User System and their use as contemplated herein, and (ii) oral or visual information relating to such Program and its use (all of which shall be considered Bidrrr’s Confidential Information for all purposes) only in connection with the use permitted hereunder and in compliance with the License and without violating any restriction or covenant provided for in this Agreement or pursuant to any applicable law, rule or regulation, and User shall not provide Confidential Information, or any portion thereof, to any third party for any purpose or allow any such third party to have any access whatsoever to any Confidential Information. Specifically, and without in any way limiting the foregoing, User shall not make any public statement or any private statement to any member of the public media relating to the Confidential Information or otherwise relating to the Program, the Bidrrr System or the User System to the extent it relates to use pursuant to the License. User agrees to hold all Confidential Information in strict confidence, to not disclose, distribute or disseminate the Confidential Information or documents or information derived therefrom in any way to any third party and to not use the Confidential Information for its own benefit or the benefit of others, except for the purposes provided for in this Agreement. Bidrrr may use any and all Confidential Information, whether originating with Bidrrr, User or any third party, for any and all purposes without restriction, and all such Confidential Information shall be the exclusive property of Bidrrr, and User hereby grants any and all rights to all Confidential Information to Bidrrr and shall retain no rights thereto. User acknowledges and agrees that the Confidential Information is the confidential, proprietary and trade secret information of Bidrrr and that the unauthorized use or disclosure of the Confidential Information could cause irreparable harm and significant injury to Bidrrr for which Bidrrr would have no adequate remedy at law. Therefore, Bidrrr shall have the right, in addition to any other rights Bidrrr may have at law or in equity, to seek and obtain immediate injunctive relief enjoining any breach or potential breach of this Agreement by User, including without limitation the covenants, restrictions and assignments set forth in this Section 4. The enforceability of the immediately preceding sentence shall in no way effect the enforceability of the remainder of this Section 4 or any other provision of this Agreement. The provisions of this Section 4 shall survive the termination of this Agreement for any reason.
4.03. Notwithstanding anything to the contrary set forth herein, nothing in this Agreement shall be construed to prevent any employee or other person providing personal services to Bidrrr or User from engaging in legal labor organization activities, which may include disclosure of information relevant to such activities.
5. OWNERSHIP.
5.01. All Confidential Information, and all related rights in trademarks, patents, copyrights and trade secrets shall at all times, and throughout the world, remain the property of Bidrrr exclusively. All bug reports and other reports and suggestions and other materials provided by User to Bidrrr shall be the exclusive property of Bidrrr and shall be deemed Confidential Information.
5.02. User understands and agrees that the Program and the Bidrrr System, and all portions thereof, are and shall at all times remain the property of Bidrrr or third parties which have granted Bidrrr the right to grant the License, and User shall have no rights or interests therein except the right to access the Bidrrr System and use the Program as provided for herein and to fulfill User’s other obligations, all as set forth herein.
5.03. User shall not develop software, hardware or firmware or any kind derivative of, emulating or interfacing with the Development Materials or make any screen shots of the Development Materials or circulate to any third party any report or other output of the Program without the prior written consent of Bidrrr. User shall not (a) attempt to download from the Bidrrr System any portion of the Development Materials, or (b) reverse engineer, disassemble or decompile the Development Materials, and User shall not allow anyone else to conduct any activities prohibited or otherwise restricted in this Section 5.02 or elsewhere in this Agreement. All modifications of and software, firmware or hardware derivative to the Development Materials and all inventions embodied in or based on the Development Materials in any way, whether developed, conceived or suggested by Bidrrr, User or any third party employed by User, or jointly by Bidrrr and User or any third party employed by User, and regardless of whether or not User pays for such development, shall be and shall remain the property of Bidrrr, User shall have no rights or interests therein, and to the extent that User shall have any rights therein under applicable law, such rights are hereby assigned to Bidrrr.
6. DISCLAIMER; LIMITATION OF LIABILITY.
6.01. User understands that (a) the development of the Program and the Bidrrr System by its nature creates certain risks of errors, failures, loss of data, corruption of other software and the like, (b) the Program is expected to and will likely contain errors, and the Bidrrr System is not expected to operated continuously, and User may experience down time, planned or unplanned, due to equipment failure, maintenance, backups or other circumstances that may or may not be announced by Bidrrr in advance, (c) neither the Program nor the Bidrrr System should be expected to run without interruption or without errors, faults or lost information, (d) the Bidrrr System and/or the Program at times may not accessible at all, and the User System may also experience problems from time to time, (e) the Bidrrr System and/or the Program may fail, and such failure may cause loss of data, which may be stored on the User System or the Bidrrr System, corruption or destruction of other software or hardware of User, for which Bidrrr shall have no responsibility, and User is warned to maintain backups and take other measures to protect its valuable information, and (f) Bidrrr may not be able to foresee or warn User of any such problems. User assumes all risks associated with the operation of the User System, access to the Bidrrr System, and operation and use of the Program contemplated hereunder, and in no event will Bidrrr be obligated, contractually or otherwise, to indemnify User for any losses that it may incur in connection with such operation, access and use or otherwise relating to the User System, the Bidrrr System and/or the Program. USER ASSUMES ALL LIABILITIES ASSOCIATED WITH THE OPERATION OF THE USER SYSTEM, ACCESS TO THE Bidrrr SYSTEM AND USE OF THE PROGRAM. Bidrrr DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF TITLE, AND ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL Bidrrr BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED BY USER OR ANY OTHER PERSON, INCLUDING BUT NOT LIMITED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, DIRECT DAMAGES OR ANY LOST DATA, LOST BUSINESS, LOST EARNINGS OR PROPERTY DAMAGE ARISING OUT OF THIS AGREEMENT, THE USER SYSTEM, THE Bidrrr SYSTEM, OR THE DELIVERY, USE, SUPPORT OR OPERATION OF THE PROGRAM, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND/OR CAUSED BY THE USER SYSTEM SPECIFIED BY Bidrrr, THE Bidrrr SYSTEM OR BY THE PROGRAM OR ANY PORTION OR ASPECT OF ANY OF THEM OR BY Bidrrr, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OR GROSS NEGLIGENCE OF Bidrrr OR ANY OF ITS EMPLOYEES, CONTRACTORS OR OTHER THIRD PARTIES ACTING ON BEHALF OF Bidrrr OR PROVIDING SERVICES RELATING TO THE DEVELOPMENT MATERIALS OR THEIR USE. ANY LIABILITY IMPOSED ON Bidrrr HEREUNDER SHALL BE LIMITED TO THE FEES PAID TO Bidrrr BY USER FOR THE RESOURCES PROVIDED BY Bidrrr PROVEN TO HAVE PROXIMATELY CAUSED SUCH LIABILITY, AND IN ANY EVENT SUCH LIABILITY SHALL NOT EXCEED THE SUM OF TEN THOUSAND DOLLARS ($10,000).
7. TERM AND TERMINATION; SUSPENSION OF ACCESS; EFFECTIVE DATE.
7.01. The term of this Agreement shall be one (1) year from and after the Effective Date the (“Initial Term”), unless terminated earlier as provided in Section 7.02. Following the expiration of the Initial Term, unless either party terminates this Agreement in accordance with the terms set forth herein, this Agreement shall automatically renew for successive terms of one (1) year (each, a “Renewal Term”) unless and until either party gives the other party notice of termination at least sixty (60), but no more than ninety (90) days to the expiration of the Initial Term or any Renewal Term. The Initial Term and any applicable Renewal Term(s) shall be the “Term” of this Agreement.
7.02. Bidrrr may terminate this Agreement at any time without cause, immediately, upon giving written notice to User. User may terminate this Agreement at any time and without cause upon ten (10) days prior written notice, and revoke the License granted hereunder by giving written notice to Bidrrr specifying the effective date of such termination, together with a termination fee equal to the sum of One Hundred Dollars ($100), and upon receipt of such notice and payment, Bidrrr shall use reasonable efforts to promptly deliver to User any data or other information resident on the Bidrrr System requested in writing by User, subject to a reasonable fee for the preparation and delivery of such data and/or information as may be imposed by Bidrrr. Any notice issued hereunder shall be in writing or by electronic mail, may be hand delivered in person, delivered with confirmed delivery by mail or courier, or by confirmed electronic mail (receipt of which shall be deemed to have occurred if the party receiving notice makes any reply, in writing or by electronic mail, to such electronic mail notice) to the address of User according to Bidrrr’s records, which initially shall be the address set forth below User’s signature to this Agreement, and any payment due hereunder in connection with such termination shall be delivered in such manner in immediately available funds tendered to Bidrrr in a manner acceptable to Bidrrr.
7.03. The provisions of subsection 2.06, and Sections 4, 5, 6 and 9 shall survive any expiration or termination of this Agreement for any reason.
7.04. Immediately upon any termination or expiration of this Agreement, User shall no longer be a licensee as contemplated hereunder or retain any rights granted herein, and, without further notice from Bidrrr, User shall deliver to Bidrrr or destroy any and all portions of the Program, including but not limited to all copies thereof, all documentation relating thereto, all output of the Program, and all notes and similar materials relating thereto, and shall certify in writing to Bidrrr that such delivery and/or destruction has been accomplished.
7.05. In addition to the foregoing, and without termination of this Agreement, reserving any and all other rights that Bidrrr may have in equity or at law, in the event that User fails to pay any amount due to Bidrrr hereunder or if the credit card method provided by User fails a reasonable validation test, Bidrrr may suspend User’s access to the Bidrrr System and the Program by temporarily disabling User’s User ID and Password, in which event Bidrrr shall use reasonable efforts to notify User of the situation and cooperate with User’s good faith attempt to make payment promptly or correct the credit card issue, in which event Bidrrr may thereafter reinstate User’s User ID and Password, thereby allowing User to resume access to the Bidrrr System and use of the Program, subject to a reasonable Fee by Bidrrr for late charges and administrative effort of correcting the situation.
8. MISCELLANEOUS.
8.01. This Agreement supersedes all prior agreements and understandings, and this Agreement, together with such terms of service and other terms of use, policy statements and the like made available to User on the Bidrrr System, Bidrrr’s website or otherwise conveyed to User by notice, each of which is incorporated herein by reference for all purpose, sets forth the entire agreement between the parties regarding the subject matter. All authorized modification shall be in writing, and it is understood and agreed that Bidrrr may unilaterally amend, supplement or otherwise revise the terms of this Agreement by requiring User to agree to such amended, supplemented, or otherwise revised Agreement as a condition of continued access the Bidrrr System and the Program in the same or similar manner as User agrees to this Agreement, i.e., by setting forth the entire amended, supplemented, or otherwise revised Agreement in a manner that User may review it carefully, requiring that User click an “I Agree” button in order to accept such amended, supplemented, or otherwise revised Agreement and continue to access the Bidrrr System and the Program, or allowing User to terminate this Agreement by clicking an “I Do Not Agree” button, in which case the then-current Agreement between User and Bidrrr, including the License and any other rights granted to User by Bidrrr shall terminate and cease immediately, User’s right to access the Bidrrr System and the Program shall be curtailed, User’s User ID and Password will be immediately disabled, and any fees pre-paid to Bidrrr by User shall be forfeited; provided, however, that any such termination by User shall be considered a termination under subsection 7.02 of this Agreement by User, subject to the terms thereof. The foregoing shall not apply to the initial agreement or non-agreement to this Agreement by User, which shall be governed by Section 9 below.
8.02. All media releases, public announcements and public disclosures (including, but not limited to, promotional or marketing material), by User relating to this Agreement or its subject matter, or including the name of Bidrrr or any affiliate of Bidrrr, or any reference to the Bidrrr Materials, the Program, or the functionality thereof in any way is strictly prohibited unless approved by Bidrrr in writing prior to the release thereof, which approval may be denied, withheld or conditioned at Bidrrr’s absolute discretion. A violation of this Section 8.02 shall be considered a violation of Section 4 hereof and a material breach of this Agreement subject to equitable relief, and the imposition of actual damages and punitive damages by a court of competent jurisdiction.
8.03. The Section headings used in this Agreement are for reference and convenience only and shall not enter into the interpretation hereof.
8.04. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then obligations arising under such provision shall be null and void and each provision not so affected shall be enforced to the full extent permitted by law.
8.05. No delay or omission by either party hereto to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof. No change, waiver or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.
8.06. All remedies set forth in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, inequity or otherwise, and may be enforced concurrently or from time to time.
8.07. Termination or expiration of this Agreement for any reason shall not release either party from any liabilities or obligations set forth in this Agreement which (i) the parties have expressly agreed shall survive any such termination or expiration, or (ii) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration.
8.08. This Agreement shall be governed by and construed in accordance with the laws, other than choice of law rules, of the State of Texas. Any litigation arising out of or in connection with this Agreement, whether initiated by Bidrrr or User, shall be brought in the Texas State District Courts located in Harris County, Texas, or, with respect to matters of exclusive Federal subject matter jurisdiction (but not diversity jurisdiction over matters governed by State law unless pendant to such Federal matters or otherwise also subject to Federal law regarding such matters, in which case Federal law shall be deemed to supersede any and all applicable state law), in the United States District Courts located in Houston, Texas, and each of the parties hereto submits to the personal jurisdiction of such Courts and agrees that service of process given at the address provided for such party and in the manner provided for above for notices shall be effective, even if such address is not within the physical jurisdiction of such Courts.
8.09. In no event shall User actually or constructively export the Program, or any portion thereof, outside of the United States of America or allow any person outside of the United States of America to access the Bidrrr System or use the Program for any purpose.
8.10. If the Bidrrr System is made accessible to, or the Program is made available for use by, any U.S. Government Customer (e.g., if User is a U.S. Government employee or has any kind of relationships with the U.S. Government that results in access to the Bidrrr system of the Program by any U.S. Government agency, employee, contractor, representative or agent), then all access to the Bidrrr System and the Program is provided with "Restricted Rights" as set forth in the applicable provisions of the Federal Acquisition Regulations and/or the regulations of the applicable agency. The manufacturer is Bidrrr LLC, 4801 Woodway, Suite 275 E, Houston TX, USA 77056
9. USER’S ELECTION TO ACCEPT OR NOT ACCEPT; APPLICABILITY OF CERTAIN PROVISIONS.
9.01. In order to reach this point, User has been given the opportunity to review this entire Agreement, User has provided certain User Identifying Information, and Bidrrr has provided to User a User ID and Password allowing User to gain access to this website, which is part of the Bidrrr System. User may click “I Accept” below, in which case such action shall be deemed to be an electronic signature for all purposes by the person with the Individual User Name, Company Affiliation (if any) and other details in the User Identifying Information, having been authenticated by User’s provision of User Identifying Information and further authenticated User’s identity by entering the User ID and Password provided by Bidrrr to User personally and Bidrrr’s collection of additional information relating to User’s access to the Bidrrr System for such purposes. After so accepting, User shall promptly deliver to Bidrrr any additional information and/or execute and deliver to Bidrrr any and all such documents and instruments that Bidrrr may reasonably request to acknowledge such acceptance and/or further authenticate User’s signature hereto. As provided for above, if User does not agree to the terms and conditions of this Agreement after having been granted access to the Bidrrr System and given opportunity to review and evaluate such terms and conditions, User may click “I Do Not Accept” below, in which event User’s connection to the Bidrrr System shall immediately be terminated, any prepaid fees paid by User to Bidrrr shall thereafter be forfeited, the applicable User ID and Password utilized to access the Bidrrr System shall be deactivated immediately, and User may only regain access to the Bidrrr System by contacting Bidrrr LLC and making arrangements to obtain a new User ID and Password. In such event, the provisions of subsection 2.03 and Sections 4, 5 and 6 of this Agreement shall be deemed to have been accepted and agreed to by User in consideration of Bidrrr’s disclosure to User of various details regarding the Program, the Bidrrr System (including without limitation the internet address for this webpage and related webpages that are part of the Bidrrr System), the terms and conditions of this Agreement and the specifications for the User System, which User shall have used to access Bidrrr web pages, and unless a court, subject to the provisions of subsection 8.08 above, rules that such provisions are unconscionable (in which event such provisions shall be reformed to make the conscionable), such provisions shall survive User’s decision to reject the terms and conditions of this Agreement. If User merely disconnects from the Bidrrr System without selecting either “I Agree” or “I Do Not Agree,” User shall be deemed to have accepted this Agreement and immediately terminated pursuant to subsection 7.02, subject to the terms thereof, it being understood and agreed that User has been given the opportunity to review the terms of this Agreement in advance and separate from having been given access to the Bidrrr System after being assigned a User ID and Password.
NOW, THEREFORE, subject to User’s agreement to the terms and conditions of this Agreement, which shall be evidenced by the provision of User clicking the “I Agree” button below and deemed to be an electronic signature, a duly-authorized representative of Bidrrr has agreed to the terms and conditions of this Agreement, which shall be effective as of the Effective Date.
Bidrrr LLC
USER LICENSE AGREEMENT
REAL ESTATE PROPERTY INTEGRATION SOLUTION
WHEREAS, Bidrrr has developed a compilation of computer programs, electronic documentation and other electronic materials made available to User for access on this website and for the generation of certain functional screens, information, reports, computations, communications and other material that User may download, compile, or otherwise capture on User’s own computer systems or by other methods (collectively, the “Program”), as defined and further described in subsection 1.01(b) of this Agreement, which is housed on computer, telecommunications and other equipment operated by Bidrrr (the “Bidrrr System”), as defined and further described below; and
WHEREAS, User is actively involved in the real estate business, desires to obtain a license to use the Program by accessing the Bidrrr System, and Bidrrr is willing to grant such a license as a personal right to User, all in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration received and to be received, the sufficiency of which is hereby acknowledged by the parties, Bidrrr and User agree as follows:
1. DEFINTIONS.
1.01. As used in this Agreement:
(a) “Bidrrr System” means Bidrrr’s proprietary computer systems, together with all hardware, firmware, bios and other software embedded in such hardware, operating system software, database management software, broadband internet connections and equipment utilized to implement such connections, and other equipment and software proprietary to Bidrrr or third parties who have granted rights to Bidrrr utilized to operate the Program and/or to access such resources, other than the User System, which Bidrrr System shall be physically maintained by Bidrrr and not made physically accessible to User under any conditions;
(b) “Program” means certain computer software and related systems designed to be accessed by internet and executed by real estate professionals, including User, together with User’s business associates who have entered into license agreements independently with Bidrrr (each, an “Other Participant” or, collectively, “Other Participants”), for the purposes thereof intended by Bidrrr, all of which is proprietary to Bidrrr or third parties who have granted rights to Bidrrr, which Program is intended to be used by executing commands and instructions and otherwise using the Program as intended, directed and specified by Bidrrr and which will be and remain on the Bidrrr System or such third parties, which Program is known as Real Estate Property integration Solution, current version REPiS.2018.1.00 and which User understands and agrees shall be subject to update, modification, improvement, enhancement, revision, error correction or other changes as Bidrrr may choose, in its sole discretion at any time (the “Updates”);
(c) “User System” means such hardware, operating system software, broadband internet access software, hardware and facilities, and other materials necessary to properly operate the Program and conduct the intended use thereof, as may be specified by Bidrrr, which specifications may be modified by Bidrrr from time to time during the term of this Agreement in connection with the issuance of one or more Updates or for any other reason in the sole discretion of Bidrrr, which User System shall not exceed a single personal computer system and a single mobile device, such as a smart phone or tablet to be furnished by User and for the sole use of User and no other person, and;
(d) “Site” means the User's address identified by the User to Bidrrr or such other secure location as User may choose, exercising reasonable caution to maintain the security of the Program, the User ID and Password issued to User, and all resources used to access the Bidrrr System.
2. PAYMENT; LICENSE GRANT AND LIMITATIONS; RESTRICTIONS ON USE AND DISCLOSURE; PAYMENT
2.01. Subject to the payment by User, which payment shall be immediately due and payable to Bidrrr by authorized charge by Bidrrr to the credit card(s) designated by User, of all charges, prices and fees specified by Bidrrr as of the date they are incurred and immediately accrued (collectively, the “Fees”), Bidrrr hereby grants to User a personal, non-exclusive, non-transferable, revocable license (the “License”) to access the Bidrrr System on a “software as a service” mode and execute the functions and features of the Program remotely on the Bidrrr System in the United States for the intended purposes designated by Bidrrr utilizing a web browser compliant with technical specifications designated by Bidrrr and operating on the User System at the Site in accordance with this Agreement, and User agrees to provide certain information to Bidrrr according to subsection 2.04 below. Any sum due Bidrrr hereunder that is not collectible by Bidrrr charging such sum to User’s designated credit card(s) or otherwise paid when due shall thereafter bear interest until paid at a rate of interest equal to the lesser of (a) eighteen percent (18%) per annum, compounded daily, or (b) the maximum non-usurious rate of interest allowed by applicable law. User understands and agrees that in the event that Bidrrr is unable to validate the credit card information, or such other payment method information, provided by User, Bidrrr may suspend or terminate User’s right to access the Bidrrr System, suspend or terminate the License, and/or suspend or terminate User’s right to use all or part of the Program. Unless User provides Bidrrr with a valid tax exemption, User shall pay directly or reimburse Bidrrr for all taxes, assessments, permits and fees, however designated, which are levied upon this Agreement or the access to the Bidrrr System or use of the Program, or there in any way otherwise relating thereto, excluding franchise taxes and taxes based upon Bidrrr’s income.
2.02. The provisions of this subsection 2.02 shall in no way limit restrictions and covenants provided for elsewhere in this Agreement. In no event shall User copy or attempt to make any copy of all or any part of the program, except as necessary to use the Program utilizing a web browser and other equipment and software specified by Bidrrr, which shall reside on the User System and to access and store information generated by the Program and intended to be so stored by Bidrrr on internal memory that is part of the Bidrrr System (and on backup and archival equipment operated or controlled by Bidrrr consistent with industry standards for disaster recovery and other industry standards for prevention of the loss of critical data). Use of the Program under the License shall be for User’s exclusive use consistent with the intended use of the Program designated by Bidrrr, and in no event shall User attempt to download the Program or deliver copies of the Program, or any portion thereof, or provide access to the Program or any of its functions, to any third party, other than reports and information accessible by User and to provide reports and information to one or more third parties, all consistent with the intended use of the Program designated by Bidrrr, subject to applicable restrictions provided for in this Agreement, and without deletion of any proprietary rights statements or other legends placed thereupon, designated by Bidrrr. User shall access the Bidrrr System and use the Program only at the Site on the User System, which shall be connected to a secure internet connection (and not any public internet connection), meeting or exceeding such specifications as may be designated by Bidrrr, only for the purposes stated herein and the intended purposes designated by Bidrrr and which connection shall be protected using commercially reasonable means, which shall be no less than means employed by User to protect its most sensitive information. User shall in no event be entitled to access the Bidrrr System or to use the Program for the purpose of evaluation, examination or copying of the Program or any aspect thereof, including without limitation “look and feel,” functionality, methodologies, algorithms or execution of the same, technical specifications, including without limitation details regarding the Bidrrr System or any specifications for the User System (the latter other than as necessary to obtain, configure, install and test the User System), or performance specifications or metrics relating to performance of the Program, or in any other way in connection with the creation by User or any third party of software systems with comparable functionality, in whole or in part, with the Program or any portion thereof.
2.03. In no event shall the License be deemed to convey any title to the Program, the Bidrrr System, or any portion thereof, such title shall remain at all times with Bidrrr or third parties who have granted rights to Bidrrr, and User shall have no rights with respect to the Program, including without limitation any Updates incorporating suggestions or ideas supplied or made by User, the Bidrrr System or any intellectual property or other property embodied therein as a result of the License or other rights granted in this Agreement.
2.04. User will use reasonable efforts to complete and deliver to Bidrrr reports relating to any material problems, errors, “bugs,” functional inadequacies, or other issues encountered by User in connection with access to the Bidrrr System and/or use of the Program and other information requested by Bidrrr in the format specified by Bidrrr, such as through a web site or by electronic mail. All information relating to the foregoing shall be deemed Confidential Information (as hereinafter defined) and shall become, and remain, the property of Bidrrr, whether or not leading to any Update(s).
2.05. Bidrrr may make such Updates and other modifications to the Program, the Bidrrr System and means of accessing the Bidrrr System, and the specifications for the User System, as Bidrrr deems necessary or useful, even if such modifications result in the loss of data collected by the Program in connection with its use by User. User understands and agrees that it is contemplated that Updates are expected to occur from time to time and that User is encouraged to make suggestions, recommendations and other observations regarding the Development Materials to Bidrrr, but Bidrrr shall not be obligated to make any Update and/or make any such Update to User or correct any errors in the Program or the Bidrrr System or the specifications for the User System.
2.06. The License and the associated rights granted herein to use the Program and access the Bidrrr System are for the sole purpose of using the Program in accordance with the terms of this Agreement, and that the License to the Program, together with the specifications for the Bidrrr System and the User System is licensed, not sold, to User for use only by User for User’s internal purposes, and the License granted to User only entitles User to access and make use of the Bidrrr System and the Program for the intended functions designated by Bidrrr, as defined by the type of License obtained by User, under the terms of this Agreement, all of which is subject to timely payment of all Fees to Bidrrr by User. The Program may also subject to the terms of other agreements between User and Bidrrr or the terms of agreements between Bidrrr and certain third parties who have provided rights to Bidrrr for portions of the Program or for resources that are part of the Bidrrr System and necessary for the operation and use of the Program. Only individual users specifically authorized by Bidrrr who have agreed to the terms and conditions of this Agreement and given a User ID and Password may access the Bidrrr System and use Program, download reports, take screen shots of images of any kind generated and rendered by the Program, or any other function or part of the Program and/or related materials from this website, and all such use by the User shall be subject to the restrictions set forth in this Agreement. User agrees not to disclose the User ID or Password assigned by User by Bidrrr to any other person, or allow any other person to use or even observe the use of the Program and/or related materials licensed hereunder to User by Bidrrr for any purpose, and User understands and agrees that any such disclosure or allowance shall constitute a material breach of this Agreement.
3. USER SYSTEM; SUPPORT
3.01. User shall (i) provide the User System, maintain the User System to ensure compliance with specifications designated by Bidrrr, and make such modifications to the User System as may be designated by Bidrrr from time to time, and (ii) from time to time provide Bidrrr with comments and suggestions on the functionality and performance of the Program and the Bidrrr System. User shall have no right, and shall make no attempt to, pledge, loan, mortgage or attempt in any other manner to dispose of the Program or to suffer any liens, encumbrances, or legal process to be incurred or levied on the Program.
3.02. Bidrrr will support to User during the term of this Agreement, consisting only of telephone or email communication and other correspondence as designated by Bidrrr and during regular business hours, all in accordance with Bidrrr's policies. Users can submit queries, report problems and make other support inquiries by emailing to info@bidrrr.com, and if there any system related issues can also attach a copy of the screen shot taken from a smart phone or other method and provide an explanation of the issue and provide contact information.
4. CONFIDENTIALITY.
4.01. For the purposes of this Agreement the term “Confidential Information” shall mean the existence and terms of this Agreement the Program, the specifications for the Bidrrr System and the User System and all materials and information relating thereto in any way, including without limitation with any and all information, know-how, technology, technical, functional and performance specifications, operating environment specifications, and documentation relating to Program, the Bidrrr System and/or the User System, as well as the characteristics, features and existence of the Program and any and all notes, mental impressions and other information created or gathered by User relating in any way to Bidrrr and/or the Program, the Bidrrr System, the User System or their use, together with all information collected and/or retained on the Bidrrr System, as contemplated in this Agreement, all of which, as between Bidrrr and User, shall be deemed proprietary to Bidrrr and subject to protection under applicable laws, in the United States and throughout the world, of patent, trademark (state, federal and common law), trade secret (state and federal) and all other laws intended to protect intellectual property rights and other property rights, all of which rights shall be deemed to belong to Bidrrr for all purposes, and in the event that it is determined in any way that any such rights do not belong to Bidrrr, User hereby assigns irrevocably and without reservation of any kind any and all such rights that User may possess now or at any time.
4.02. User may use the Confidential Information and related information received from Bidrrr and all other information relating to the Program, the Bidrrr System, and the User System and the use thereof contemplated hereunder, including without limitation both (i) written information relating to such Program Materials, the Bidrrr System and the User System and their use as contemplated herein, and (ii) oral or visual information relating to such Program and its use (all of which shall be considered Bidrrr’s Confidential Information for all purposes) only in connection with the use permitted hereunder and in compliance with the License and without violating any restriction or covenant provided for in this Agreement or pursuant to any applicable law, rule or regulation, and User shall not provide Confidential Information, or any portion thereof, to any third party for any purpose or allow any such third party to have any access whatsoever to any Confidential Information. Specifically, and without in any way limiting the foregoing, User shall not make any public statement or any private statement to any member of the public media relating to the Confidential Information or otherwise relating to the Program, the Bidrrr System or the User System to the extent it relates to use pursuant to the License. User agrees to hold all Confidential Information in strict confidence, to not disclose, distribute or disseminate the Confidential Information or documents or information derived therefrom in any way to any third party and to not use the Confidential Information for its own benefit or the benefit of others, except for the purposes provided for in this Agreement. Bidrrr may use any and all Confidential Information, whether originating with Bidrrr, User or any third party, for any and all purposes without restriction, and all such Confidential Information shall be the exclusive property of Bidrrr, and User hereby grants any and all rights to all Confidential Information to Bidrrr and shall retain no rights thereto. User acknowledges and agrees that the Confidential Information is the confidential, proprietary and trade secret information of Bidrrr and that the unauthorized use or disclosure of the Confidential Information could cause irreparable harm and significant injury to Bidrrr for which Bidrrr would have no adequate remedy at law. Therefore, Bidrrr shall have the right, in addition to any other rights Bidrrr may have at law or in equity, to seek and obtain immediate injunctive relief enjoining any breach or potential breach of this Agreement by User, including without limitation the covenants, restrictions and assignments set forth in this Section 4. The enforceability of the immediately preceding sentence shall in no way effect the enforceability of the remainder of this Section 4 or any other provision of this Agreement. The provisions of this Section 4 shall survive the termination of this Agreement for any reason.
4.03. Notwithstanding anything to the contrary set forth herein, nothing in this Agreement shall be construed to prevent any employee or other person providing personal services to Bidrrr or User from engaging in legal labor organization activities, which may include disclosure of information relevant to such activities.
5. OWNERSHIP.
5.01. All Confidential Information, and all related rights in trademarks, patents, copyrights and trade secrets shall at all times, and throughout the world, remain the property of Bidrrr exclusively. All bug reports and other reports and suggestions and other materials provided by User to Bidrrr shall be the exclusive property of Bidrrr and shall be deemed Confidential Information.
5.02. User understands and agrees that the Program and the Bidrrr System, and all portions thereof, are and shall at all times remain the property of Bidrrr or third parties which have granted Bidrrr the right to grant the License, and User shall have no rights or interests therein except the right to access the Bidrrr System and use the Program as provided for herein and to fulfill User’s other obligations, all as set forth herein.
5.03. User shall not develop software, hardware or firmware or any kind derivative of, emulating or interfacing with the Development Materials or make any screen shots of the Development Materials or circulate to any third party any report or other output of the Program without the prior written consent of Bidrrr. User shall not (a) attempt to download from the Bidrrr System any portion of the Development Materials, or (b) reverse engineer, disassemble or decompile the Development Materials, and User shall not allow anyone else to conduct any activities prohibited or otherwise restricted in this Section 5.02 or elsewhere in this Agreement. All modifications of and software, firmware or hardware derivative to the Development Materials and all inventions embodied in or based on the Development Materials in any way, whether developed, conceived or suggested by Bidrrr, User or any third party employed by User, or jointly by Bidrrr and User or any third party employed by User, and regardless of whether or not User pays for such development, shall be and shall remain the property of Bidrrr, User shall have no rights or interests therein, and to the extent that User shall have any rights therein under applicable law, such rights are hereby assigned to Bidrrr.
6. DISCLAIMER; LIMITATION OF LIABILITY.
6.01. User understands that (a) the development of the Program and the Bidrrr System by its nature creates certain risks of errors, failures, loss of data, corruption of other software and the like, (b) the Program is expected to and will likely contain errors, and the Bidrrr System is not expected to operated continuously, and User may experience down time, planned or unplanned, due to equipment failure, maintenance, backups or other circumstances that may or may not be announced by Bidrrr in advance, (c) neither the Program nor the Bidrrr System should be expected to run without interruption or without errors, faults or lost information, (d) the Bidrrr System and/or the Program at times may not accessible at all, and the User System may also experience problems from time to time, (e) the Bidrrr System and/or the Program may fail, and such failure may cause loss of data, which may be stored on the User System or the Bidrrr System, corruption or destruction of other software or hardware of User, for which Bidrrr shall have no responsibility, and User is warned to maintain backups and take other measures to protect its valuable information, and (f) Bidrrr may not be able to foresee or warn User of any such problems. User assumes all risks associated with the operation of the User System, access to the Bidrrr System, and operation and use of the Program contemplated hereunder, and in no event will Bidrrr be obligated, contractually or otherwise, to indemnify User for any losses that it may incur in connection with such operation, access and use or otherwise relating to the User System, the Bidrrr System and/or the Program. USER ASSUMES ALL LIABILITIES ASSOCIATED WITH THE OPERATION OF THE USER SYSTEM, ACCESS TO THE Bidrrr SYSTEM AND USE OF THE PROGRAM. Bidrrr DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF TITLE, AND ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL Bidrrr BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED BY USER OR ANY OTHER PERSON, INCLUDING BUT NOT LIMITED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, DIRECT DAMAGES OR ANY LOST DATA, LOST BUSINESS, LOST EARNINGS OR PROPERTY DAMAGE ARISING OUT OF THIS AGREEMENT, THE USER SYSTEM, THE Bidrrr SYSTEM, OR THE DELIVERY, USE, SUPPORT OR OPERATION OF THE PROGRAM, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND/OR CAUSED BY THE USER SYSTEM SPECIFIED BY Bidrrr, THE Bidrrr SYSTEM OR BY THE PROGRAM OR ANY PORTION OR ASPECT OF ANY OF THEM OR BY Bidrrr, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OR GROSS NEGLIGENCE OF Bidrrr OR ANY OF ITS EMPLOYEES, CONTRACTORS OR OTHER THIRD PARTIES ACTING ON BEHALF OF Bidrrr OR PROVIDING SERVICES RELATING TO THE DEVELOPMENT MATERIALS OR THEIR USE. ANY LIABILITY IMPOSED ON Bidrrr HEREUNDER SHALL BE LIMITED TO THE FEES PAID TO Bidrrr BY USER FOR THE RESOURCES PROVIDED BY Bidrrr PROVEN TO HAVE PROXIMATELY CAUSED SUCH LIABILITY, AND IN ANY EVENT SUCH LIABILITY SHALL NOT EXCEED THE SUM OF TEN THOUSAND DOLLARS ($10,000).
7. TERM AND TERMINATION; SUSPENSION OF ACCESS; EFFECTIVE DATE.
7.01. The term of this Agreement shall be one (1) year from and after the Effective Date the (“Initial Term”), unless terminated earlier as provided in Section 7.02. Following the expiration of the Initial Term, unless either party terminates this Agreement in accordance with the terms set forth herein, this Agreement shall automatically renew for successive terms of one (1) year (each, a “Renewal Term”) unless and until either party gives the other party notice of termination at least sixty (60), but no more than ninety (90) days to the expiration of the Initial Term or any Renewal Term. The Initial Term and any applicable Renewal Term(s) shall be the “Term” of this Agreement.
7.02. Bidrrr may terminate this Agreement at any time without cause, immediately, upon giving written notice to User. User may terminate this Agreement at any time and without cause upon ten (10) days prior written notice, and revoke the License granted hereunder by giving written notice to Bidrrr specifying the effective date of such termination, together with a termination fee equal to the sum of One Hundred Dollars ($100), and upon receipt of such notice and payment, Bidrrr shall use reasonable efforts to promptly deliver to User any data or other information resident on the Bidrrr System requested in writing by User, subject to a reasonable fee for the preparation and delivery of such data and/or information as may be imposed by Bidrrr. Any notice issued hereunder shall be in writing or by electronic mail, may be hand delivered in person, delivered with confirmed delivery by mail or courier, or by confirmed electronic mail (receipt of which shall be deemed to have occurred if the party receiving notice makes any reply, in writing or by electronic mail, to such electronic mail notice) to the address of User according to Bidrrr’s records, which initially shall be the address set forth below User’s signature to this Agreement, and any payment due hereunder in connection with such termination shall be delivered in such manner in immediately available funds tendered to Bidrrr in a manner acceptable to Bidrrr.
7.03. The provisions of subsection 2.06, and Sections 4, 5, 6 and 9 shall survive any expiration or termination of this Agreement for any reason.
7.04. Immediately upon any termination or expiration of this Agreement, User shall no longer be a licensee as contemplated hereunder or retain any rights granted herein, and, without further notice from Bidrrr, User shall deliver to Bidrrr or destroy any and all portions of the Program, including but not limited to all copies thereof, all documentation relating thereto, all output of the Program, and all notes and similar materials relating thereto, and shall certify in writing to Bidrrr that such delivery and/or destruction has been accomplished.
7.05. In addition to the foregoing, and without termination of this Agreement, reserving any and all other rights that Bidrrr may have in equity or at law, in the event that User fails to pay any amount due to Bidrrr hereunder or if the credit card method provided by User fails a reasonable validation test, Bidrrr may suspend User’s access to the Bidrrr System and the Program by temporarily disabling User’s User ID and Password, in which event Bidrrr shall use reasonable efforts to notify User of the situation and cooperate with User’s good faith attempt to make payment promptly or correct the credit card issue, in which event Bidrrr may thereafter reinstate User’s User ID and Password, thereby allowing User to resume access to the Bidrrr System and use of the Program, subject to a reasonable Fee by Bidrrr for late charges and administrative effort of correcting the situation.
8. MISCELLANEOUS.
8.01. This Agreement supersedes all prior agreements and understandings, and this Agreement, together with such terms of service and other terms of use, policy statements and the like made available to User on the Bidrrr System, Bidrrr’s website or otherwise conveyed to User by notice, each of which is incorporated herein by reference for all purpose, sets forth the entire agreement between the parties regarding the subject matter. All authorized modification shall be in writing, and it is understood and agreed that Bidrrr may unilaterally amend, supplement or otherwise revise the terms of this Agreement by requiring User to agree to such amended, supplemented, or otherwise revised Agreement as a condition of continued access the Bidrrr System and the Program in the same or similar manner as User agrees to this Agreement, i.e., by setting forth the entire amended, supplemented, or otherwise revised Agreement in a manner that User may review it carefully, requiring that User click an “I Agree” button in order to accept such amended, supplemented, or otherwise revised Agreement and continue to access the Bidrrr System and the Program, or allowing User to terminate this Agreement by clicking an “I Do Not Agree” button, in which case the then-current Agreement between User and Bidrrr, including the License and any other rights granted to User by Bidrrr shall terminate and cease immediately, User’s right to access the Bidrrr System and the Program shall be curtailed, User’s User ID and Password will be immediately disabled, and any fees pre-paid to Bidrrr by User shall be forfeited; provided, however, that any such termination by User shall be considered a termination under subsection 7.02 of this Agreement by User, subject to the terms thereof. The foregoing shall not apply to the initial agreement or non-agreement to this Agreement by User, which shall be governed by Section 9 below.
8.02. All media releases, public announcements and public disclosures (including, but not limited to, promotional or marketing material), by User relating to this Agreement or its subject matter, or including the name of Bidrrr or any affiliate of Bidrrr, or any reference to the Bidrrr Materials, the Program, or the functionality thereof in any way is strictly prohibited unless approved by Bidrrr in writing prior to the release thereof, which approval may be denied, withheld or conditioned at Bidrrr’s absolute discretion. A violation of this Section 8.02 shall be considered a violation of Section 4 hereof and a material breach of this Agreement subject to equitable relief, and the imposition of actual damages and punitive damages by a court of competent jurisdiction.
8.03. The Section headings used in this Agreement are for reference and convenience only and shall not enter into the interpretation hereof.
8.04. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then obligations arising under such provision shall be null and void and each provision not so affected shall be enforced to the full extent permitted by law.
8.05. No delay or omission by either party hereto to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof. No change, waiver or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.
8.06. All remedies set forth in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, inequity or otherwise, and may be enforced concurrently or from time to time.
8.07. Termination or expiration of this Agreement for any reason shall not release either party from any liabilities or obligations set forth in this Agreement which (i) the parties have expressly agreed shall survive any such termination or expiration, or (ii) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration.
8.08. This Agreement shall be governed by and construed in accordance with the laws, other than choice of law rules, of the State of Texas. Any litigation arising out of or in connection with this Agreement, whether initiated by Bidrrr or User, shall be brought in the Texas State District Courts located in Harris County, Texas, or, with respect to matters of exclusive Federal subject matter jurisdiction (but not diversity jurisdiction over matters governed by State law unless pendant to such Federal matters or otherwise also subject to Federal law regarding such matters, in which case Federal law shall be deemed to supersede any and all applicable state law), in the United States District Courts located in Houston, Texas, and each of the parties hereto submits to the personal jurisdiction of such Courts and agrees that service of process given at the address provided for such party and in the manner provided for above for notices shall be effective, even if such address is not within the physical jurisdiction of such Courts.
8.09. In no event shall User actually or constructively export the Program, or any portion thereof, outside of the United States of America or allow any person outside of the United States of America to access the Bidrrr System or use the Program for any purpose.
8.10. If the Bidrrr System is made accessible to, or the Program is made available for use by, any U.S. Government Customer (e.g., if User is a U.S. Government employee or has any kind of relationships with the U.S. Government that results in access to the Bidrrr system of the Program by any U.S. Government agency, employee, contractor, representative or agent), then all access to the Bidrrr System and the Program is provided with "Restricted Rights" as set forth in the applicable provisions of the Federal Acquisition Regulations and/or the regulations of the applicable agency. The manufacturer is Bidrrr LLC, 4801 Woodway, Suite 275 E, Houston TX, USA 77056
9. USER’S ELECTION TO ACCEPT OR NOT ACCEPT; APPLICABILITY OF CERTAIN PROVISIONS.
9.01. In order to reach this point, User has been given the opportunity to review this entire Agreement, User has provided certain User Identifying Information, and Bidrrr has provided to User a User ID and Password allowing User to gain access to this website, which is part of the Bidrrr System. User may click “I Accept” below, in which case such action shall be deemed to be an electronic signature for all purposes by the person with the Individual User Name, Company Affiliation (if any) and other details in the User Identifying Information, having been authenticated by User’s provision of User Identifying Information and further authenticated User’s identity by entering the User ID and Password provided by Bidrrr to User personally and Bidrrr’s collection of additional information relating to User’s access to the Bidrrr System for such purposes. After so accepting, User shall promptly deliver to Bidrrr any additional information and/or execute and deliver to Bidrrr any and all such documents and instruments that Bidrrr may reasonably request to acknowledge such acceptance and/or further authenticate User’s signature hereto. As provided for above, if User does not agree to the terms and conditions of this Agreement after having been granted access to the Bidrrr System and given opportunity to review and evaluate such terms and conditions, User may click “I Do Not Accept” below, in which event User’s connection to the Bidrrr System shall immediately be terminated, any prepaid fees paid by User to Bidrrr shall thereafter be forfeited, the applicable User ID and Password utilized to access the Bidrrr System shall be deactivated immediately, and User may only regain access to the Bidrrr System by contacting Bidrrr LLC and making arrangements to obtain a new User ID and Password. In such event, the provisions of subsection 2.03 and Sections 4, 5 and 6 of this Agreement shall be deemed to have been accepted and agreed to by User in consideration of Bidrrr’s disclosure to User of various details regarding the Program, the Bidrrr System (including without limitation the internet address for this webpage and related webpages that are part of the Bidrrr System), the terms and conditions of this Agreement and the specifications for the User System, which User shall have used to access Bidrrr web pages, and unless a court, subject to the provisions of subsection 8.08 above, rules that such provisions are unconscionable (in which event such provisions shall be reformed to make the conscionable), such provisions shall survive User’s decision to reject the terms and conditions of this Agreement. If User merely disconnects from the Bidrrr System without selecting either “I Agree” or “I Do Not Agree,” User shall be deemed to have accepted this Agreement and immediately terminated pursuant to subsection 7.02, subject to the terms thereof, it being understood and agreed that User has been given the opportunity to review the terms of this Agreement in advance and separate from having been given access to the Bidrrr System after being assigned a User ID and Password.
NOW, THEREFORE, subject to User’s agreement to the terms and conditions of this Agreement, which shall be evidenced by the provision of User clicking the “I Agree” button below and deemed to be an electronic signature, a duly-authorized representative of Bidrrr has agreed to the terms and conditions of this Agreement, which shall be effective as of the Effective Date.
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