Software and Service Online License Agreement

THIS SOFTWARE AND SERVICE LICENSE TO USE "XACTINFO", "MYPROSITE", OR ANY OF ITS SUBSIDIARY PARTS, IS CONDITIONAL.  YOU MUST AGREE TO THE FOLLOWING TERMS.   SUBSEQUENT USE OF XACTINFO WILL BE SUBJECT TO ANY ADDITIONS OR MODIFICATIONS IN EFFECT THE DATE OF THAT USE.  IF YOU DO NOT AGREE WITH THESE TERMS, EXIT NOW, DO NOT PROCEED,  AND DO NOT USE THIS SITE.  BY PROCEEDING, YOU ARE INDICATING THAT YOU AGREE TO BE GOVERNED BY THIS AGREEMENT.

XactInfo is a product of XactSites.  XactSites is a subsidiary of Xactware, Inc., a Utah corporation.

The term "XactInfo" as used in this Agreement refers to all of Xactware's electronic assignment, electronic tracking, electronic storage, information, reminder and general information service. This service may include all or portions of MyProsite, XactNet, Xactimate, XactValue, XactInfo, ISkills, Sketch and XactAnalysis. 

By using this site, you represent that you are 18 years of age or older, that you have reviewed the version of this License Agreement current as of the date of your use, and you agree to be bound by its terms.

This version of the License Agreement was last updated on 12/28/2000.

PROHIBITED USES.

1.             Portions of XactInfo constitute a passive service of allowing the posting of information.   XactSites assumes and undertakes no responsibility to police or review the accuracy of the information posted, or the right of the individual posting the information to do so.  Nevertheless, postings which come to the attention of XactSites and which are deemed by it to violate the terms of this Agreement may be removed without notice and/or may result in revocation of this License.  The following are strictly prohibited:

a.)                Matter that is libelous, invasive of privacy rights, inflammatory, hateful, pornographic, indecent,  illegal, or misleading.

b.)                Any materials that violate or infringe upon the trademark, copyright or proprietary rights of others.  This includes illegally distributed/hijacked software, copyrighted photographs, text, video, artwork, and music.  

c.)                Any electronic component designed to interfere with the function of hardware, software or data, e.g., virus worm, Trojan Horse, or intentionally corrupted data.

d.)                Making any attempt at any time to decompile, reverse engineer, disassemble in part, or in whole XactInfo, MyProsite, Xactimate, XactValue, ISkills, XactNet, Sketch, or XactAnalysis and all other Xactware, Inc. proprietary, trademarked, or copyrighted materials.   

REPRESENTATIONS AND WARRANTIES.

You represent that you either own or have legal authority to control the property that is the subject of the information  posted on your XactInfo.

You acknowledge that those parties to whom you grant access may rely upon the information posted by you.  You represent and warrant that to the best of your information and belief, the information posted by you is accurate.  Unsupported opinions and estimates should be so identified.  You further represent and warrant that the information obtained by you through   your use of XactInfo will be treated as opinion and shall not be relied upon by you without independent verification, except at your own risk.

LINKS.

You acknowledge and agree that XactInfo may provide links to sites created by others.  XactSites makes no implied or express representation or warranty with respect to the accuracy of information contained in these linked sites.

TERM.

The term of this Agreement shall be for twelve (12) months.  This term will automatically renew at each anniversary date unless either party provides written verified notification of intent to terminate the Agreement at least ninety (90) days prior to the anniversary date. Notification sent to you by XactSites will be sent to the e-mail address provided in your Member Profile and Registration, attached to this Agreement hereto and by this reference incorporated herein.  It is your responsibility to update your e-mail and physical address when appropriate.  Except as otherwise indicated in this Agreement, it is assumed that you reserve all rights to your postings.

OWNERSHIP OF DATA AND LIMITATIONS ON USE.

"Direct Work Product" is information compiled using the expertise or equipment of any entity proposing to provide, or actually providing service to the property.  If a company called Ed's Decks, Inc. presented you an estimate on paper for building a deck, the paper estimate is a Direct Work Product of Ed's Decks, Inc.   If that same company were to post an electronic version of that estimate, the electronic version of the estimate is also considered a Direct Work Product of Ed's Decks, Inc.  A Direct Work Product is also defined as information compiled on behalf of any entity that has been authorized by the property owner to do work on the property, or who has potential responsibility to provide funding for the work on, or acquisition of the property.  For example, if Ed's Decks, Inc. requested an estimate from a handrail subcontractor, the handrail estimate would also be considered a Direct Work Product of Ed's Decks, Inc. Rights in articles, photographs, images, illustrations, audio clips and video clips, software records, tables and databases are expressly reserved to the entity causing or creating the Direct Work Product. 

Any entity posting its Direct Work Product to XactInfo shall, by the act of posting, indicate its agreement to give joint rights of ownership of that Direct Work Product to the owner of the XactInfo to which it is posted.  In other words, by posting an estimate to your XactInfo, Ed's Decks, Inc., grants you joint rights of ownership.  This means that, you and the Direct Work Product owner have the same rights to use that document until you at your sole discretion, decides to remove it from inclusion in your future references to your XactInfo.

The intent of XactSites is to reserve a copyright for the entire XactInfo website as a collective work.  Any material posted by you with permission or license of another should include proper credits and a full description of the permission given.  Accordingly, you may not copy or use XactInfo information or data unless you are the sole owner of that information, or as otherwise provided by this License Agreement.  The foregoing includes, but is not limited to, Internet postings such as electronic bulletin boards, chat rooms, news groups and any other sites with similar posting potential.   You should not assume that any information or data on XactInfo is in the public domain.  On the contrary, any rights in individual postings are reserved unless otherwise expressly provided.  XactInfo provides you the ability to identify   your information as private.  Owners of data shall have the right to disclose their data to any other party at their sole discretion.  Rights of ownership of data may be shared between owners.  

There may be multiple owners of data with respect to one structure, for example: the owner of the structure, a bidding contractor, an architect or engineer who has prepared drawings of the structure, a lending institution contemplating or making a loan against the property, or an insurance company looking to properly compensate the owner for a loss may all post information regarding a given structure.  In such a case, each party may rely on a document posted on XactInfo which each can access and use for the purpose of collaborating with those other entities working on the XactInfo subject property.   One owner's decision to destroy their copy from their own files or to discontinue its use of XactInfo shall have the same effect as an owner destroying a paper copy of a document in their own file cabinet.  Such destruction has no effect on the paper copies that reside in the file cabinets of other owners.  Similarly, destruction of one owner's copy of an electronic document from their own document posted to XactInfo will not affect the other copies of the document being relied upon by other owners for the agreed collaboration.

XactSites will never re-sell your "Personal Identifying Information" such as your  name, property address, phone numbers, or e-mail address to any third-party entity.  You expressly acknowledge that, so long as it does not include your Personal Identifying Information as the source or subject of the data, XactSites shall have a perpetual right to use XactInfo data in its aggregated reports.  For example, XactSites may produce a report that provides the total number of XactInfos registered within your ZIP/postal code area.  While your XactInfo Member Profile and Registration Information would be counted as part of that total, that report would not reveal your Personal Identifying Information. 

LIMITATIONS ON LIABILITY AND DISCLAIMER BY XACTSITES.

XactInfo represents an integration point for content obtained from a vast array of sources.  You assume the risk of human or mechanical error by XactInfo, its members, licensees or other contributors that may cause delays, errors, or omissions.  XACTSITES, XACTINFO, AND XACTWARE DOES NOT WARRANT THE TIMELINESS, ACCURACY, ADEQUACY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THE INFORMATION PROVIDED THROUGH XACTINFO. XACTINFO, XACTSITES, XACTWARE OR ANY OF ITS MEMBERS, AFFILIATES, LINKED SITES, LICENSEES OR AGENTS SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INJURY OR LOSS RESULTING FROM THE USE OF XACTINFO, CAUSED IN WHOLE, OR IN PART EITHER BY XACTSITES', XACTINFO'S OR XACTWARE'S NEGLIGENCE OR EVENTS BEYOND XACTSITES', XACTINFO'S OR XACTWARE'S CONTROL.

XactInfo cannot and does not represent or assume the accuracy of, or in any way endorse the content, provided by its members or any other entity.  You warrant and represent, therefore, that your use of XactInfo information is only as a source of opinion.  You agree not to rely thereon without independent verification except at your own risk

You agree that as between you and XactInfo, you are in the best position to assess your loss potential for any damage or injury incurred by you which arises out of your use of  XactInfo and you therefore contract and agree to accept the burden of insuring against such loss, including, but not limited to, losses caused by breach of express or implied warranty, product or service defect, negligence and the acts or omissions of XactSites, XactInfo , Xactware and its subsidiary parts.  You waive any right of subrogation as to XactSites, XactInfo, and Xactware against any such insurable loss.  You agree to indemnify and hold XactSites, XactInfo, Xactware and its subsidiary parts harmless from liability arising out of your use of the XactInfo website or data obtained there from which arises out of any such insurable loss.  You accept responsibility for all statements made, acts or omissions that occur as part of the use of this website when such use    is made possible through the use of your ID and password.  You agree to indemnify XactSites, XactInfo, and Xactware from claims arising out of your use or from disclosure of your ID or password

XactSites, XactInfo, Xactware, and its members, affiliates, linked sites, licensees or agents shall not be liable to you or anyone else affected by decisions made by you as a result of reliance upon content found within XactInfo.   XactSites, XactInfo, Xactware, and its members, affiliates, linked sites, licensees or agents shall not be liable to you or anyone   else for any damages, including, without limitation, loss of profit, damage to goodwill or any other special, incidental, consequential, circumstantial, indirect or similar damages, even if advised of the possibility of such damages.  The foregoing notwithstanding, you agree that the liability of XactSites, XactInfo, Xactware and its members, affiliates, linked sites, licensees or agents for any claim, whether in contract, tort or otherwise, which is in any way connected to XactInfo or its content, shall not exceed the amount you paid for the use of XactInfo services in the twelve (12) months prior to the date your claim arises.

PAYMENTS.

You agree to pay all billings within ten (10) days of receipt of an electronic billing, which billing will be sent via e-mail to the address listed in your Member Profile and Registration.

Your fees associated with use of XactInfo are $49.95 for registration and subscription for the first year and $19.95 each subsequent year. 

Fees associated with the use of products aforementioned in this Agreement are listed in their respective License Agreements.

GOVERNING LAW AND ARBITRATION.

The laws of the State of Utah will govern the validity, construction, performance, and enforceability of this Agreement.  If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.

You agree to submit to the in personam jurisdiction of the State and Federal Courts in Utah as to disputes arising out of the interpretation or performance of this Agreement. 

You hereby agree to submit any dispute arising out of the interpretation, breach or enforcement of this Agreement to binding arbitration before a panel of three neutral members to be conducted under the auspices of the American Arbitration Association in Salt Lake City, Utah.  It shall not be within the power of the arbitrators to:  (a) award punitive or consequential damages by either party, loss of profits or loss of goodwill or consequential or incidental damages; (b) award damages that exceed $5,000.00; and/or (c) award damages in connection with any infringement of Xactware, Inc. copyrights, trademarks, and all other proprietary rights.  It shall not be considered a waiver of this provision nor construed as an agreement to arbitrate an issue involving such claims of damage for a party to raise this Section as a defense to such claims in arbitration.

GENERAL.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND FURTHER AGREE THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT BETWEEN XACTSITES AND YOU RELATING TO THIS AGREEMENT.

FOR FURTHER INFORMATION:  Should you have any questions concerning this Agreement or if you desire to contact XactSites or Xactware, Inc., please call (801) 226-2251 or visit our Website at www.xactware.com.

If you need Technical Support for a Xactware product, please call (801) 764-5900 or send an e-mail to supp@xactware.com. Technical Support hours are 6 a.m. to 6 p.m. Mountain Time, Monday through Friday, except holidays.

All Xactware products are registered trademarks of Xactware, Inc. All other brand and product names are registered trademarks of their respective holders.

Ó Copyright 2001-2002 by Xactware, Inc.  All Rights Reserved.