Terms and Conditions – Dealers

See Also: Terms and Conditions – Contractors
SUBSCRIPTION AGREEMENT
(Dealers/Wholesale Suppliers)

This Subscription Agreement (“Subscription Agreement”) is entered into by and between you, as a registrant of portal and service website service for determining material quantities and costs for concrete paver projects (“System”) provided by Smart Estimators, LLC (“Smart Estimators”) and is effective as of the date this Subscription Agreement is accepted by you (“Effective Date”). Subject to your successful registration to access the System and compliance with this Subscription Agreement, you and your authorized staff on behalf of the entity that you represent (collectively, “you” or “Registrant”) will be enabled to access and use the Service.
IF YOU DO NOT AGREE TO THIS SUBSCRIPTION AGREEMENT, PLEASE EXIT THIS WEBSITE AS YOU ARE NOT PERMITTED TO USE THE SERVICE.

RECITALS

A. Smart Estimators provides an online website service for determining material quantities and costs for concrete paver projects (“System”).

B. Subscriber is a wholesale supplier or distributor of pavers and similar products and would like to subscribe to access Smart Estimators’ System for use in Subscriber’s regular course of business on behalf of itself and its customers.

C. Smart Estimators is willing to make its System available to Subscriber pursuant to the terms and conditions set forth below.

THEREFORE, in consideration of the above and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

AGREEMENT

SECTION 1. Access and Use of System.

1.1 License to Access. Smart Estimators grants Subscriber a non-transferable, non-assignable, non-exclusive, limited license to use, access and display the System solely for use in connection with Subscriber’s internal business to assist Subscriber’s end customers with placing orders and subject to the terms and conditions of this Agreement. Subscriber may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the System.

1.2 Restrictions on Use. Subscriber may not use any robot, spider or other automatic device or manual process to monitor or copy the System’s web pages or any content contained on or available through the System. Subscriber may not copy, market, distribute, export, translate, reverse engineer, transmit, merge, modify, transfer, adapt, loan, rent, lease, assign, share, redistribute, host, hyper-link to, frame, or store the System, or permit access to all or part of the System by any person other than Subscriber and its authorized employees (“Authorized Users”). Subscriber may not use the System on a time-sharing or service bureau basis. As a condition of your use of the System, Subscriber may not use the System for any purpose that is unlawful or prohibited by this Agreement or any terms, conditions, and notices posted on the System. Subscriber may not attempt to gain unauthorized access to any services, other accounts, computer systems or networks connected to any Smart Estimators server or to the System, through hacking, password mining or any other means. Subscriber may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the System. Smart Estimators retains the right, but is not obligated, to store and monitor any activity and content on any system operated by Smart Estimators, including without limitation the System. Smart Estimators further retains the right to disclose such activity and content to third parties, including without limitation law enforcement officers.

1.3 Acceptable Use Policies. Subscriber must comply with all System access policies that Smart Estimators may post from time to time, including without limitation any Terms of Use and applicable Privacy Policy as may be posted from time to time.

1.4 Passwords. Subscriber must choose a password and a user name to access Subscriber’s account on the System. Subscriber is entirely responsible for maintaining the confidentiality of its password and System account information. Subscriber is entirely responsible for any and all activities that occur under its account and for all activities of Subscriber’s Authorized Users. Subscriber agrees to notify Smart Estimators immediately of any unauthorized use of Subscriber’s account or any other breach of security. SMART ESTIMATORS WILL NOT BE LIABLE FOR ANY LOSS THAT SUBSCRIBER MAY INCUR AS A RESULT OF SOMEONE ELSE USING SUBSCRIBER’S PASSWORD OR ACCOUNT, EITHER WITH OR WITHOUT SUBSCRIBER’S KNOWLEDGE. IN ADDITION, SUBSCRIBER MAY BE LIABLE FOR LOSSES INCURRED BY SMART ESTIMATOR OR ANY ANOTHER PARTY DUE TO SOMEONE ELSE USING SUBSCRIBER’S ACCOUNT OR PASSWORD. Subscriber may not use anyone else’s account at any time, without the permission of the account holder.
1.5 System Changes. Smart Estimators, from time to time, may modify, upgrade or otherwise change the manner in which the System functions or is provided including, but not limited to, the hardware, software, features or environment required, so long as such System is substantially comparable or superior to functionality and reliability as compared to the prior System. Smart Estimators has no obligation to update, upgrade, modify, enhance, impose, or otherwise implement any changes to the System, nor is Smart Estimators obligated to remedy or fix any error, bug, or defect or provide any workaround.

SECTION 2. Fees

2.1 Billing. Smart Estimators will bill Subscriber’s credit card on a monthly basis for access to the System in the amount set forth on the sign up form. Smart Estimators may terminate Subscriber’s access to the System or otherwise suspend access to the system to Subscriber in the event any payment is past due. In the event Smart Estimators is required to pursue legal action to collect on unpaid balances, Subscriber will reimburse Smart Estimators for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.

2.2 Automatic Payments. All charges will be billed against the credit card provided in the payment authorization form. Subscriber is responsible for maintaining a valid credit card on file with Smart Estimators for billing purposes. If the payment information that Subscriber submits is incorrect or invalid, Smart Estimators will not be able to process payment. Payment is subject to the approval of the financial institution issuing the credit card or maintaining the bank account. Smart Estimators has no liability if Subscriber’s credit card information is incorrect or refused by the card-issuing institution. In the event Smart Estimators is unable to process Subscriber’s payment for any reason, Smart Estimators may terminate or suspend access to the System in Smart Estimators’ sole discretion.

2.3 Taxes. The fees required under this Agreement do not include any applicable taxes. Subscriber is responsible for all sales, use, VAT, excise, property, withholding or other taxes, if any, which Smart Estimators may be required to collect or remit to applicable tax authorities in connection with the provision of the System.

2.4 Subscriber Costs. Subscriber is responsible for its own computer hardware and Internet connection for access to the System.

SECTION 3. Ownership

3.1 Proprietary System. The System consists of software, graphics, images, text, data or other content, all of which are proprietary to Smart Estimators (or its vendors or suppliers) and which are protected by United States, foreign, and international copyright, trademark and other intellectual property laws. Smart Estimators does not convey to Subscriber any grant or license with respect to the System, or any other copyrighted works, trademarks or any other intellectual property except as expressly set forth in Section 1.1 above.

3.2 Data. All data submitted through the System is and becomes the property of Smart Estimators, and may be freely used by Smart Estimators subject to applicable laws and Smart Estimators’ privacy policy.

3.3 Confidential Information. Subscriber agrees (a) to hold all non-public information relating to Smart Estimators and the System that Smart Estimators considers and maintains as confidential or proprietary or Subscriber knows, has reason to know or should reasonably understand is confidential or proprietary under the circumstances of disclosure (“Confidential Information”) in strict confidence, (b) not to disclose such Confidential Information to any third parties, and (c) not to use any Confidential Information for any purpose except for Subscriber’s internal business purposes as expressly authorized by this Agreement. Subscriber may disclose the Confidential Information to its Authorized Users with a bona fide need to know, but only to the extent necessary to carry out Subscriber’s internal business purposes. Subscriber agrees to instruct all such Authorized Users not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of Smart Estimators. Confidential Information expressly includes without limitation the System and your user ID and password information necessary to access the System. Confidential Information will not include information that: (i) is now, or later becomes, through no act or failure to act by Subscriber, generally known or available to the public; (ii) was acquired by Subscriber before receiving such information from Smart Estimators and without restriction as to use or disclosure; (iii) is hereafter rightfully furnished to Subscriber by a third party without restriction as to use or disclosure; or (iv) is disclosed with the prior written consent of Smart Estimators. Subscriber recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to Subscriber, by license or otherwise, to any Confidential Information except as specified in this Agreement. The obligations of non-disclosure, non-use, and confidentiality described in this Agreement will remain in effect as to each piece of Confidential Information until one of the conditions (i)-(iv) applies to such piece of Confidential Information.

SECTION 4. Subscriber Warranties

4.1 Warranties.Subscriber represents, warrants and covenants that: (i) all information provided to Smart Estimators or its third party vendors and suppliers, is true, accurate and complete in all material respects; (ii) Subscriber has the authority to enter into this Agreement; (iii) Subscriber is operating under the appropriate state and/or federal laws and regulations and holding all necessary licenses and permissions required to engage in business; (iv) Subscriber will comply with all applicable laws and regulations and will use the System solely for lawful purposes.
4.2 Usage Limitations. In addition, Subscriber agrees that (i) it will not interfere with another user’s use and enjoyment of the System; (ii) Subscriber will not interfere with or disrupt any security measures; (iii) Subscriber will not interfere with or disrupt networks connected to the System, and will comply with all regulations, policies and procedures of such networks; (iv) Subscriber may not make copies of any aspect of the System, including the webpage, or any underlying software related to the System, for purposes of distribution to the public by sale or other transfer of ownership, or by rental, lease or lending; and, (v) Subscriber may not perform publicly or publicly display any aspect of the System or any underlying software related to the System.

SECTION 5. Term and Termination.

5.1 This Agreement will be in effect for a period of twelve (12) months and will automatically renew for consecutive one (1) year terms unless either party provides notice of an intent not to renew within thirty (30) days of expiration of the then current initial or renewal terms or unless otherwise terminated under this Section.

5.2 Termination. Either party can terminate this Agreement without cause upon thirty (30) days written notice to other party at any time. In addition, Smart Estimators may terminate this Agreement immediately upon written notice in the event that Subscriber misuses or uses for any unlawful purpose the System or otherwise breaches this Agreement.

5.3 Effect of Termination. Any termination will not terminate either party’s obligations to pay amounts due and owing or otherwise earned prior to the expiration of the term. All fees are nonrefundable.

SECTION 6. Disclaimers and Limitations.

6.1 No Warranties. The System is provided on an “as is,” “as available” and “with all faults” basis. Smart Estimators disclaims all other warranties with respect to the System, including without limitation all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement and any warranties arising from a course of dealing or usage in trade. Smart Estimator does not make any warranty or representation regarding (a) the results that may be obtained from use of the System, (b) any material, information or data downloaded or otherwise obtained from the System or (c) the accuracy or reliability of any information obtained from the System. Without limiting the generality of the foregoing, Smart Estimators makes no representation, warranty or condition that the System will be available at any given time, that it will operate, uninterrupted or error-free, that defects will be corrected or that Subscriber will be able to use the System correctly. By using or accessing the System, Subscriber expressly agrees that such use and access is at Subscriber’s own risk. Neither Smart Estimators nor its vendors or suppliers shall have any responsibility for any decisions made in reliance on the System. Smart Estimators does not warrant or represent that information or content available through the System is accurate, current or complete. Smart Estimators shall have no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communication.

6.2 Internet Reliability. Smart Estimators provides the System to Subscriber through the Internet, which is subject to outages, communication and data flow failures, interruptions and delays inherent in Internet communications. You recognize that problems with the Internet, including equipment, software and network failures, impairments or congestion or the configuration of your computer systems, may prevent, interrupt or delay your access to the System. Smart Estimators shall not be liable for any delays, interruptions, suspensions or unavailability of the System, or any portion of the System, attributable to problems with the Internet or configuration of your computer systems. There is no warranty or guarantee that access or use of the System will be uninterrupted or error-free.

6.3 Necessary Downtime. As the System is a hosted platform, it will be necessary for Smart Estimators to disable access to the System for maintenance and support purposes from time to time. Smart Estimators will use commercially reasonable efforts to do so during non-business hours to minimize any business disruption.

6.4 Advice. No advice or information, whether oral or written, obtained by you from Smart Estimators in any manner will create any warranty.

SECTION 7. LIMITATION OF LIABILITY.

Except for Subscriber’s indemnification obligations, neither party shall be liable to the other for any loss of profits, loss of business, loss of revenues, costs of substitute goods or services, or any indirect, consequential, exemplary, special or incidental damages arising from or related to this Agreement or from use of or inability to use the System, regardless of whether arising in contract, tort (negligence or strict liability), or under any other theory and regardless of whether such party was made aware of the possibility of such damages or such damages are foreseeable. In no event shall Smart Estimators’ liability to Subscriber exceed the Fees paid to Smart Estimators by Subscriber in the previous twelve (12) months preceding the claim, which shall be Subscriber’s sole and exclusive remedy under this Agreement, even if it should fail of its essential purpose.

SECTION 8. Indemnification.

Subscriber shall indemnify and hold harmless, and at Smart Estimators’ option defend, Smart Estimators, its affiliates and their respective officers, employees, directors, and representatives, from and against any and all damages, losses, claims, liabilities, costs and expenses (including legal fees and costs) awarded against or incurred by any of them in connection with any third party claim as a result of or relating to (i) Subscriber’s business or any Subscriber transaction with any third party, including without limitation act, omission, fraud, misrepresentation or business practice on the part of Subscriber or its representatives; (ii) any use or misuse of any information obtained through use of the System; (iii) any use or misuse of Subscriber’s user ID and password, or (iv) any act or omission of Subscriber or any violation of alleged violation of any law by Subscriber.

SECTION 9. Miscellaneous.

9.1 Miscellaneous. This Agreement constitutes the entire contract between the parties with respect to the subject matter of this Agreement. Any previous agreement between the parties, whether written or oral, is superseded by this Agreement. This Agreement may not be assigned or transferred by Subscriber. This Agreement will be governed by and construed in accordance with the laws of the State of Indiana without regard to its conflicts of law principles. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one agreement. Any modifications to this Agreement must be agreed upon in writing by the parties. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) will be excluded from this Agreement and the remainder of this Agreement will be interpreted as if the provision were excluded and will be enforceable in accordance with its terms. The parties agree that each is an independent contractor and neither is the agent, representative, or partner of the other and neither party has the authority to act as or represent itself as the agent of the other party. The headings of this Agreement are for the convenience of the parties only and shall not affect the construction or interpretation. Certain provisions will, by their nature, survive any termination or expiration of this Agreement.

9.2 Force Majeure. Smart Estimators has no obligation to perform under this Agreement to the extent and for the period that Smart Estimators is prevented from doing so by any cause beyond its reasonable control, including without limitations, acts of God, acts of terrorism, earthquakes, fire, flood, failure of the Internet, failure of suppliers, or the inability to use or the failure of any third party telecommunications carrier.

9.3 Trademarks and Publicity. Except as otherwise contemplated by this Agreement, neither party will use the other party’s name, trademarks, trade names or other designations in any promotion or publication without the prior written consent of the other party. Neither party may issue press releases or make other public announcements regarding this Agreement without the prior written consent of the other party, which consent may be reasonably withheld by the party whose consent is being sought. Notwithstanding the foregoing, Smart Estimators may list Subscriber as a customer of Smart Estimators.

THEREFORE, the parties via their duly authorized representatives enter into this Agreement as of the date of acceptance by clicking “Accept” upon electronic signup.