Effective January 1, 2012
The current version of this agreement will be effective, accepted and agreed to by user upon each login of the software.
THIS USER AGREEMENT (this “Agreement”) is made and entered into by and between Bergenske Enterprises, Inc. – D/B/A: MoveitPro™, a Florida corporation, (“MoveitPro™”) and any person or legal entity that makes use of the Software (“User”). The term “Authorized User” shall refer to any User making Authorized Uses for or on behalf of a MoveitPro™ affiliated customer.
MoveitPro™ has developed a web-based software product known as MoveitPro™ for use in generating estimates and managing move workflow (the “Software”). Authorized User desires to gain and/or maintain licensed access to, and use of, the Software. MoveitPro™ is willing to provide Authorized User with a non-exclusive, limited use and non-transferable/non-sublicensable license to access and use the Software for generating estimates and managing move workflow in support of business. This Agreement sets forth the terms and conditions under which Authorized User may, during the Term (as defined below) of this Agreement, make Authorized Uses of the Software.
- Grant of License; Restrictions; Ownership.
- License. Subject to the terms and conditions of this Agreement, MoveitPro™ hereby grants to Authorized User a non-exclusive, limited use, non-transferable/non-sublicensable license to use the Software in object code form during the Term of this Agreement. Authorized User agrees that the Software shall be used solely for Authorized Uses. No license is granted to Users except for Authorized Users. Any use other than Authorized Uses is strictly prohibited.
- Use and Restrictions. Authorized User shall use the Software and MoveitPro™ Content solely to generate estimates and manage move workflow in support of their authorized business. No User may: (i) permit or authorize access to, or disclosure of, the Software to any third party without MoveitPro™ prior written consent, (ii) reproduce, license, subscribe, sell, lease, publish, distribute, lend, rent, assign (by operation of law or otherwise) or otherwise transfer the Software, or the use thereof, to any unauthorized person or entity without MoveitPro™ prior written consent, (iii) attempt to de-compile, disassemble or reverse engineer the Software, or otherwise obtain the source code from the object code of the Software, (iv) use or attempt to use the Software for any unlawful purpose including violation of antitrust or consumer privacy laws. User assumes all risk and liability resulting from its use or access of the Software.
- Compliance with Laws. User hereby warrants that it will comply with all laws, regulations, and MoveitPro™ policies applicable to its use of the Software. User further warrants that it will not use the Software to infringe any copyright, trademark or other proprietary right or intellectual property right of any party in any way, or to conduct, contribute to, or promote any harmful or illegal activity.
- Monitoring Use. User hereby acknowledges that MoveitPro™ has the right to monitor and audit the use of the Software by technological means or otherwise. User shall cooperate in accurately reporting to MoveitPro™, upon MoveitPro™ request, information and circumstances relating to User’s use of the Software. MoveitPro™ may at any time in its sole discretion refuse to allow any User, including any Authorized User, to use the Software for any reason in MoveitPro™ sole discretion.
- Username and Password. User may be required to provided or create usernames and passwords to access the Software. User is responsible for maintaining the confidentiality of the usernames and passwords and for all activities that occur under User’s passwords and accounts. User agrees to (i) immediately notify MoveitPro™ of any unauthorized use of User’s passwords or accounts or any other breach of security, and (ii) ensure that User exits from its account at the end of each session. MoveitPro™ will under no circumstances be responsible for any loss or damage arising from User’s failure to comply with this sub-section.
- Ownership. User agrees that MoveitPro™ shall solely own all rights, title, and interest in and to the “MoveitPro™ Content,” which means the: (i) Software, (ii) visual output, documents, and data generated by or available through the software including their copyright, trade dress, and overall look and feel, and (iii) any text, audio, video or other electronic media and/or graphic or image files related to the Software or its use and output,. Authorized User shall retain all rights, title, and interest in and to any text, audio, video or other electronic media and/or graphic or image files provided by Authorized User (“User Content”). User acknowledges that the Software is protected by the laws of the United States and international treaties including without limitation copyright laws. User agrees not to modify or create derivative works of the Software. MoveitPro™ is under no obligation to provide any updates, enhancements, modifications, revisions, additions, replacements, conversions or maintenance to the Software.
- Operational Contingencies. The effectiveness and operation of the Software are contingent upon factors that include, but are not limited to, the: (i) operating system and condition of Authorized User’s computer(s), (ii) Authorized User’s connection bandwidth, (iii) user volume and system demand, (iv) and the quality and availability of third party services. Authorized User is solely responsible for acquiring, installing, operating and maintaining Internet access, equipment and operating system and application software necessary to operate, use and utilize the Software in Authorized User’s operating environment. Responsibility for the quality, capabilities, operations, performance and suitability of Authorized User’s Internet access, equipment and operating system and application software lies solely with Authorized User.
- User Content. User represents and warrants that any User Content or other data, information, or materials provided by User, do not violate, misappropriate or otherwise infringe upon any rights of any third party, including but not limited to any copyright, trademark or other intellectual property rights, rights of privacy or rights of publicity. User represents and warrants that any User Content or other data, information, or materials provided by User, and User’s use, whether or not authorized, of the Software shall not include or involve any material or activities that are unlawful, harmful, fraudulent or otherwise objectionable. Except as otherwise provided herein, User agrees that it shall be solely responsible for any liability arising out of or relating to its use of the Software or to any User Content or other data, information, or materials provided by User.
- Disclaimer of Warranties. THE SOFTWARE AND MOVEITPRO™ CONTENT ARE PROVIDED TO AUTHORIZED USER ON AN “AS IS” BASIS. MOVEITPRO™ MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, TO ANY USER REGARDING THE SOFTWARE AND MOVEITPRO™ CONTENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY AND PERFORMANCE OF THE SOFTWARE AND MOVEITPRO™ CONTENT IS WITH USER. USER FURTHER acknowledges that the Software AND MOVEITPRO™ CONTENT may experience both scheduled and unscheduled downtime.
- Limitation of Liability. IN NO EVENT SHALL MOVEITPRO™ BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY, AND MOVEITPRO™ HEREBY DISCLAIMS ANY AND ALL LIABILITY, FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, MULTIPLE, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT MOVEITPRO™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Confidentiality. As used herein, “Confidential Information” includes, without limitation, this Agreement, the Software, any materials or information, whether involving the Software or otherwise, related to MoveitPro™ or its affiliated van lines or their agents that User reasonably should understand to be confidential, and all end-user or customer data received through use of the Software. User represents and warrants that it will only use Confidential Information for Authorized Uses pursuant to this Agreement. User agrees to maintain the confidentiality of the Confidential Information using at least as great a degree of care as User uses to maintain the confidentiality of User’s own most confidential information, but in no event shall such degree of care be less than the minimum reasonable care necessary to ensure the confidentiality of the Confidential Information and to comply with all applicable laws and regulations. User acknowledges that the Confidential Information may include valuable trade secrets of MoveitPro™. User acknowledges that violation of User’s obligations with respect to the Confidential Information or MoveitPro™ proprietary rights will immediately give rise to continuing irreparable injury to MoveitPro™, inadequately compensable in damages at law, and that without limitation of MoveitPro™ other remedies at law or in equity, MoveitPro™ is entitled to obtain immediate injunctive relief to restrain such breach, without the necessity to post bond.
- Infringement Claims.
- Infringement Claim Indemnity. Authorized User shall notify MoveitPro™ promptly in writing of any threatened or pending judicial third party action brought against Authorized User alleging that Authorized User’s normal operation and use of the Software or MoveitPro™ Content in accordance with this Agreement infringes, misappropriates or otherwise violates such third party’s trademark, trade secret, copyright, patent or other intellectual property rights (each, an “Infringement Claim”). Subject to Section3 and provided that Authorized User is otherwise in compliance with its obligations under this Agreement and Authorized User’s respective Agency Agreement, MoveitPro™ shall indemnify and defend Authorized User against any Infringement Claim at its own expense and shall pay (i) Authorized User’s reasonable attorneys’ fees, (ii) any costs and damages finally awarded against Authorized User in such action and (iii) any amount agreed to be paid by MoveitPro™ in settlement of such Infringement Claim, if any. MoveitPro™ foregoing obligations are subject to and conditioned upon: (i) MoveitPro™ having the sole control of the defense, negotiation and settlement of such Infringement Claim and (ii) Authorized User’s cooperation in such defense.
- In the event that a permanent injunction is obtained against Authorized User’s use of the Software or MoveitPro™ Content, MoveitPro™ may immediately terminate this Agreement, the license granted hereunder and Authorized User’s access to and use of the Software or MoveitPro™ Content.
- THIS SECTION SHALL NOT APPLY TO ANY THIRD PARTY INFRINGEMENT CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO USER CONTENT. THIS SECTION SHALL BE MOVEITPRO™ SOLE AND EXCLUSIVE OBLIGATION, AND USER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY THIRD PARTY INFRINGEMENT CLAIMS OR ANY ALLEGED OR ACTUAL INFRINGEMENT, MISAPPROPRIATION, MISUSE OR OTHER VIOLATION OF A THIRD PARTY’S PROPRIETARY RIGHTS RELATED TO THE SOFTWARE OR MOVEITPRO™ CONTENT, OR ANY PART THEREOF OR USER’S USE THEREOF.
- Indemnification. User will indemnify, hold harmless and defend MoveitPro™ and its subsidiaries and affiliates, and its and their respective officers, directors, employees, agents and advisors, from and against, and will reimburse those indemnified parties with respect to, any and all claims, demands, causes of action, proceedings, losses, damages, debts, expenses, liabilities, fines, penalties, deficiencies, judgments or costs, including reasonable attorneys’ fees, court costs, amounts paid in settlement and costs and expenses of investigations, at any time and from time to time asserted against or incurred by any of those indemnified parties arising out of, in connection with, resulting from or by reason of (i) any breach of this Agreement by User, including, but not limited to, any breach of User’s representations and/or warranties set forth herein, (ii) User’s gross negligence, or (iii) User’s willful misconduct.
- Term and Termination. The current version of this Agreement will be effective, accepted and agreed to by User upon each login of the Software. MoveitPro™ may terminate this Agreement and any license granted hereunder at any time without cause and without notice. This Agreement shall automatically terminate without notice upon the termination or expiration of Authorized User’s or its respective agent’s business relationship with MoveitPro™ or its affiliated van line. In the event of termination, User shall immediately cease all use of the Software, MoveitPro™ Content, and Confidential Information, and destroy any and all Confidential Information and materials relating to the Software including all instructions, documentation, passwords. User shall be solely responsible for securing User Content in advance of termination. Any and all rights, obligations or liabilities of the parties under this Agreement which by their nature or express duration extend beyond the termination will survive termination and continue in effect indefinitely or for that express duration.
- Severability; Headings. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances or (ii) of the remaining provisions hereof under all circumstances. Headings shall not be considered in interpreting this Agreement.
- No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Successors and Assigns. All provisions of this Agreement are binding upon, inure to the benefit of and are enforceable by or against the parties and their respective successors and assigns. MoveitPro™ may assign its rights under this Agreement, without the prior consent of User. User may not assign, transfer or sublicense its rights under this Agreement to any party.
- Amendments. MoveitPro™ may amend the terms of this Agreement at any time in its sole discretion. User acknowledges and accepts its obligation to read and understand this Agreement and any subsequent amendment which may be released.
- Entire Agreement. The terms and conditions hereof constitute the entire agreement between the parties hereto with respect to the subject matter of this Agreement and supersede all previous communications, either oral or written, implied or expressly stated, except as expressly set forth herein, and may only be modified as set forth in the section relating to Amendments.
- Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to its choice or conflicts of laws provisions. The United States District Court for Florida or the Circuit Court of the County of Orange shall be the exclusive forum for the resolution of any dispute arising from or under this Agreement, and USER irrevocably agrees to the jurisdiction of such courts and agrees that it will not object to the exercise of jurisdiction over it by such courts on the grounds of forum non-convenience or any other ground.
Written notification must be submitted to the following Designated Agent:
Bergenske Enterprises, Inc. d/b/a MoveitPro™
Name Designated to Receive Notification of Claimed Infringement:
Full Address of Designated Agent to Which Notification Should be Sent:
661 West Warren Avenue
Longwood, Florida 32750
Telephone Number of Designated Agent:
(866) 435-8865 or (407) 641-4102
Email Address of Designated Agent: