TERMS AND CONDITIONS

1. Services. Easy Estimator shall, during the Term, provide to Subscriber the Services.
2. Payment. Subscriber will pay the fees provided for in this Agreement.
3. Termination for Breach. Either Party may terminate this Agreement at any time if the other Party materially defaults under any term or condition of this Agreement and fails to cure such default within 30 days after notice from the aggrieved Party.
4. Submission of Information and Services Usage. Subscriber is solely responsible for any and all information submitted to or through the Services, whether to Easy Estimator or any other user of the Services. This responsibility extends to all transactions, entries, deletions, and other activities accomplished using the Services. Easy Estimator will have no responsibility or liability for the content, accuracy, or completeness of any such information submitted by Subscriber or any vendor, customer, or other person associated with Subscriber. Without limiting the foregoing, Subscriber shall use its best efforts to assure that all information submitted or provided to the Services by Subscriber is (i) accurate, complete and correct; (ii) does not violate any applicable federal, state, local or international statute, law, or regulation to which any transaction shall be applicable; (iii) does not infringe upon or violate the proprietary or intellectual property rights including trade name, trademark, copyright, or patent interests of any third party, and (iv) does not contain obscene, unlawful, harassing, defamatory, or libelous content. Subscriber further represents and warrants that it possesses all rights, title and interest, including applicable intellectual property rights, to submit its information to the Services.
5. Restrictions. Except as otherwise expressly permitted in this Agreement, Subscriber may not:
(a) Modify, or create any derivative works of, the Services or related documentation, including, but not limited to, translation or localization;
(b) Decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for, the Services;
(c) Redistribute, encumber, sell, rent, lease, sublicense, use the Services in a timesharing or service bureau arrangement, use for the benefit of any third party, or otherwise transfer rights to, or benefits of, the Services;
(d) Copy the Services or documentation, except for reasonably printing or otherwise reasonably retaining for reference the output of the Services (such as estimates and quotes);
(e) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services;
(f) Modify any header files or class libraries in the Services; or
(g) Benchmark or test the Services’ capacity.
6. Internet Connectivity. Easy Estimator will make available the Services at the outermost point on Easy Estimator’s Internet firewall. Subscriber will provide its own access to the Internet. Easy Estimator will have no liability whatsoever in connection with any failure of the Internet generally or any failure of Subscriber to reach the Services using the Internet.
7. Indemnification. Easy Estimator shall have no liability for, and Subscriber, at its own expense, shall defend, indemnify, and hold harmless Easy Estimator, its agents, affiliates, successors, assigns, and other Subscribers with respect to, any claims, actions, damages, liabilities, costs and expenses, including reasonable legal and accounting fees, brought or asserted against Easy Estimator, its agents, affiliates, successors, and assigns by any person that arises out of or is related to (i) any violation of any federal, state, or local law to the extent associated in any way with Subscriber’s use of the Services; (ii) attributable to the content, structure, format, or quality of any data or information delivered to the Services by Subscriber or any other person using the system through Subscriber, and/or (iii) any act or omission of Subscriber, its agents, contractors, customers, servants, or employees.
8. Ownership of Data and Technology. Except for the limited use rights expressly granted under this Agreement, Subscriber shall retain all title and other proprietary rights in and to any Subscriber data delivered to, or generated using, the Services. Notwithstanding the foregoing, Easy Estimator may use, retain, and reproduce in any form reasonably related to its business operations all data delivered to, or generated using, the Services (i) that pertains to the technical and operational functionality of the Services (ii) that is necessary or useful in assisting Easy Estimator in the diagnosis or correction of services performed, preparation of billing statements, the evaluation of its software or services, or any improvements, upgrades or enhancements thereto, or the compilation of statistical or performance information, or that (iii) is accumulated by Easy Estimator in a desensitized and aggregated basis. As between Easy Estimator and Subscriber, all right, title, and interest in and to the Services, and all software, applications, technology, and procedures developed or provided by Easy Estimator and media and documentation thereto, including, without limitation, report designs, formats, and graphics relating to the Services shall be the sole and exclusive property of Easy Estimator including, without limitation, all intellectual property rights and all related patents, copyrights, and trade secrets.
9. Warranty and Limitation of Liability.
(a) Generally. Easy Estimator represents and warrants that, during the Term, the Services will substantially comply in all material respects with Easy Estimator’s then-current Documentation associated with the Services.
(b) Limited Remedy. If the Services fails to perform according to the above warranty, Easy Estimator will, at Easy Estimator’s option: (i) promptly use its commercially reasonable efforts to repair the Services to make it compliant with the above warranty, or (ii) replace the noncompliant portion of the Services with compliant functionality, or (iii) terminate this Agreement in whole or in part and/or refund to Subscriber such amounts that Subscriber has already paid to Easy Estimator that are attributable to periods during which the Services failed to comply with such warranty. This is Subscriber’s sole remedy, and Easy Estimator’s sole liability, in connection with a breach of any warranty contained in this Agreement or any other failure of the Services to perform.
(c) Disclaimer. EXCEPT AS PROVIDED IN SECTION 9(a), ALL GOODS, SERVICES, AND/OR SOFTWARE ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EASY ESTIMATOR EXPRESSLY EXCLUDES ANY WARRANTY OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL EASY ESTIMATOR BE LIABLE TO SUBSCRIBER FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY SUBSCRIBER TO EASY ESTIMATOR FOR SERVICES PROVIDED UNDER THIS AGREEMENT . EASY ESTIMATOR SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST GOODWILL, LOST USE, LOST DATA, OR OTHER INTANGIBLE LOSSES, WHETHER DERIVED FROM THIRD PARTY CLAIMS OR LOSSES OF ANY NATURE WHATSOEVER OR OTHERWISE, REGARDLESS OF WHETHER EASY ESTIMATOR WAS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY WAS OR IS BASED UPON TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, CONTRACT, PRODUCT LIABILITY, OR ANY OTHER CLAIM AT LAW OR IN EQUITY. THE LIMITATIONS OF LIABILITY AS SET FORTH IN THIS AGREEMENT SHALL BE APPLICABLE TO, AND SHALL INURE TO, THE BENEFIT OF EASY ESTIMATOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, AND PARTNERS. THESE LIMITATIONS APPLY EVEN IF THEIR EFFECT WOULD BE TO CAUSE ANY REMEDY OR OTHER PROVISION OF THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. The foregoing limitations include and apply to, without limitation, any liability arising out of the performance or failure to perform of any hardware, software, or Internet connection or data transfers or transmission, from any errors, omissions, interruptions in or failure to provide Internet service; from interruptions in Internet availability; from the consequences of computer viruses transferred over the Internet or otherwise; or from communication line failure, breach of security due to use of the Internet, or any loss of information or confidentiality due therefrom.
10. Function of Services; No Guaranty of Compliance. Without limiting any other disclaimer of representation, warranty, covenant, or liability, Easy Estimator makes no representation or warranty that the Services, or the use thereof, will cause any person, including, but not limited to, Subscriber, to become compliant with any rule of law or any other requirement of any association, body, educational institution, or otherwise. To the extent that the Services is useful at all for any of the above purposes, it is strictly as one of many tools and means that might be part of a coordinated entry, storage, and analysis program for such records.
11. Confidentiality. The Services and its functionality are (except to the extent already disclosed by Easy Estimator to the public) the confidential information of Easy Estimator and Subscriber will not, and will not permit its employees, agents, or affiliates to, disclose to any third party such information.
12. General Provisions.
(a) Amendments. No amendment, change, waiver, or discharge of this Agreement shall be valid unless in a record signed by the Party against whom enforcement is sought.
(b) Force Majeure. If the performance of any part of this Agreement (other than payment of amounts due from Subscriber) by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, unusually severe weather, riot, fire, judicial or governmental action, labor dispute, act of God, act of terrorism, or any other cause beyond the control of either Party, that Party shall be excused from performance to the extent that it is prevented, hindered or delayed by such causes.
(c) Choice of Law. This Agreement shall be governed in all respects by the laws of the State of Michigan without regard to its conflict of laws provisions, and the sole venue and jurisdiction for disputes arising out of, or related to, this Agreement shall be the Michigan state courts sitting in Macomb County, Michigan or the United States District Court for the Eastern District of Michigan - Southern Division, and each Party hereby submits to the jurisdiction of, and consents to venue in, such courts.
(d) Assignment.
(i) Generally. Neither Party may assign, without the prior written consent of the other Party, any of its rights, duties, or obligations under this Agreement to any person, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise.
(ii) Exceptions. Notwithstanding the foregoing, Easy Estimator may assign and/or delegate its rights and obligations under this Agreement to any affiliate of Easy Estimator or in connection with the sale or other transfer of its business and Easy Estimator may assign its right to receive payment.
(e) Notice. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective (a) if given by personal delivery, upon such persona delivery or (b) if given by nationally-recognized courier or mail service (in either case that has realtime or near-realtime tracking), at the time that the notice is delivered to the receiver’s premises according to the tracking records of the courier or mail service. The addresses for notice for each Party are those in the preamble to this Agreement. Either Party may change its address for notice by notice to the other Party.
(f) Waiver. The waiver of, or failure of either Party to exercise, any right in any respect provided for herein shall not be deemed a waiver of any further right under this Agreement or a waiver of the ability to exercise the same right on a different occasion.
(g) Severability. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
(h) Counterparts. This Agreement may be executed in one or more counterparts.
(i) Drafting Party. No rule of law that requires that any part of the Agreement be construed against the Party drafting the language will be used in interpreting this Agreement.
(j) Remedies. All remedies of Easy Estimator are cumulative and pursuit or exercise of any remedy by Easy Estimator will be deemed an election by Easy Estimator of any particular remedy.
(k) Survival. The provisions of Sections 2, 3, 4, 5, 7, 8, 9(b), 9(c), 10, 11, and 12 will survive indefinitely the termination of this Agreement.
(l) Entire Agreement. This Agreement, together with any terms, conditions, and/or privacy policies presented as part of the Services, constitutes the entire agreement between Subscriber and Easy Estimator with respect to the subject matter hereof and there are no representations, understandings or agreements about the subject matter hereof that are not fully expressed in this Agreement and such terms, conditions, and privacy policies.