CONVERGENCE SITE INSPECTIONS END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT This End User License Agreement (the "Agreement") between you and RR Donnelley governs your access to and use of Convergence Site Inspections (the “Service”). By accepting this Agreement, you agree to be bound by and abide by all of the terms and conditions set forth below. Your use of the Service constitutes your continued acceptance of this Agreement. You agree that the electronic acceptance of this Agreement is intended to have the same force and effect as if this Agreement were physically signed. If you do not accept these terms and conditions, you should click the 'decline' button and promptly destroy or delete any materials in your possession relating to the Service. In this Agreement, the words "you" and "your" refer to the person accepting this Agreement, and "RR Donnelley" refers to R. R. Donnelley & Sons Company and its subsidiaries. 1. LICENSE The Service is an Internet-based hosted platform designed to facilitate real estate property site inspections workflow. You have been added to the Service as a participant and have been assigned a User ID and password. The Service includes any images, "applets", screens, photographs, animations, video, audio and text incorporated into the Service by RR Donnelley, the "look and feel" of the Service, and any proprietary software provided to you by RR Donnelley for the purpose of accessing and using the Service. The data or materials posted at the site (“Data”) are owned by the client of RR Donnelley. RR Donnelley grants you a non-exclusive, non-sublicensable, revocable, non-transferable, limited right and license (the "License") to access the Service in order to participate in the business. This End User Agreement will apply to all use of the Service through your User ID and password. You understand and agree that the License and your RR Donnelley ID and password are only granted to the individual accepting this Agreement. You agree to take all reasonable and prudent steps not to let any other person learn or use the ID or password assigned to such individual except RR Donnelley customer support staff as necessary. You also agree that you will neither register nor use any ID for group purposes or as a role account (nor permit the same). RR Donnelley may block access to the Service without notice for any ID used for group purposes or as a role account. No service bureau work, multiple-user license, or time-sharing arrangement for the use of the Service is permitted, except as expressly authorized by RR Donnelley in writing. Access to the Service is provided via the Internet through the World Wide Web. You are required to supply all software or hardware needed by you to access the Service, such as a computer, an Internet connection, and compatible Web browser software. In addition, you may be required to download and/or install additional software (e.g., certain software plug-ins or software applications) in order to access certain data on the Service. 2. OWNERSHIP OF THE SERVICE RR Donnelley is only providing you with the right to access and use the Service. RR Donnelley retains sole and exclusive ownership of and all right, title, and interest in and to the Service. Such rights include the ownership of all trade secrets, trade dress, copyrights, and other intellectual property rights pertaining to the Service to all modifications and enhancements of the Service, subject only to the rights and privileges expressly granted to you by RR Donnelley through this Agreement. In addition, the Service is presented with a distinctive "look and feel," and this "look and feel" is the proprietary property of RR Donnelley. RR Donnelley reserves all rights in and to the Service not expressly granted under this Agreement. You must not place any claims, liens, or encumbrances on the Service. The Service is protected by U.S. copyright and other US and international laws and international treaty provisions. You may not use, copy, modify, or distribute the Service (electronically or otherwise), including the source code for any portion of the Service, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by RR Donnelley hereunder or otherwise in writing. You may not modify, reverse engineer, disassemble, decompile, translate, create derivative works from, or otherwise alter the Service, except where such action is necessary to develop an independent interoperable program (and in such circumstances such action shall only be permitted on the prior written consent of RR Donnelley, such consent not to be unreasonably withheld or delayed). You may not transfer, lease, assign, rent, or sublicense the rights granted to you under this Agreement, or make the Service available for the use of other persons through your User ID. You may not use any portion of the Service or any standalone utility provided for use with the Service for any purpose other than its intended purpose. 3. CONFIDENTIALITY You acknowledge that the Service has been developed by RR Donnelley at great expenditures of time, resources, and money and is considered proprietary and confidential by RR Donnelley. Therefore, you undertake that except as needed to use the Service, you will not disclose details about the Service to any third party and will exercise the highest reasonable degree of care to safeguard the confidentiality thereof. 4. TERMINATION; ACCESS TO SERVICE Either you or RR Donnelley may terminate this Agreement or your access to the Service with immediate effect by providing notice of such termination to the other party. Without limiting the foregoing, RR Donnelley may immediately terminate or suspend your access to the Service or any utility used by you to access or use the Service if your use of the Service or that utility (a) may, in RR Donnelley’s opinion, impair the ability of other users to access or use the Service, or (b) is, in RR Donnelley’s opinion, in violation of any federal, state, local, or foreign laws, rules, regulations, and ordinances. Upon termination of this Agreement, the License granted pursuant to this End User Agreement will terminate, and you must immediately cease all access to and use of the Service through any means. Upon termination of this Agreement for any reason or upon discontinuance or abandonment of your use of the Service, you must promptly destroy all materials in your possession pertaining to the Service (including all copies thereof and any proprietary software RR Donnelley provided to you). You agree to promptly provide RR Donnelley with written certification of your compliance with the terms of this paragraph upon RR Donnelley's request. 5. COMPLIANCE WITH LAWS You acknowledge and agree that your access to and use of the Service may be subject to applicable foreign, federal, state and/or local laws, ordinances, rules, and regulations, including without limitation, the rules and regulations of foreign, federal, state, and/or local agencies (each such agency, a "Regulatory Agency"). You agree to comply with all laws, ordinances, rules, regulations, and/or requirements imposed by any government or Regulatory Agency on your use, transmission, and disclosure of any Data. 6. LIMITED WARRANTY You acknowledge that neither RR Donnelley nor any other third party partner or agent of RR Donnelley involved in the provision of the Service (each such third party, a "Third Party Provider") can ensure that the operation of, performance of, and/or access to the Service will be uninterrupted or error-free. As your exclusive remedy for any material defect in the Service provided hereunder, RR Donnelley will attempt through reasonable efforts to correct or cure any such reproducible and documented material defect. RR Donnelley will not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Service (a) if caused by software or other equipment used by you which has not been provided by RR Donnelley; (b) if you have made any changes whatsoever to the Service; (c) if the Service has been misused or damaged in any respect; or (d) if you have not reported to RR Donnelley the existence and nature of any such nonconformity or defect promptly upon discovering it. RR Donnelley does not and cannot control the flow of data to or from the Service, as such flow depends in large part on the performance of computer hardware and Internet services and software provided or controlled by third parties (including you), on the public Intranet infrastructure, and on other events beyond the reasonable control of RR Donnelley. At times, action or inaction of third parties, hardware/software problems with the public Internet infrastructure or with your computing equipment, or other events beyond the reasonable control of RR Donnelley can impair or disrupt your connection to the Service. Save as specified in the foregoing paragraph, RR Donnelley will not be liable for any such interruptions in your ability to access the Service resulting from or related to such services, software, or events. You acknowledge and agree that RR Donnelley shall not be responsible for the content of Data or the modification, use or publication of Data by you or any other participant or third party. RR Donnelley shall not be responsible for the accuracy, nature, content or completeness of information obtained by you from the Service. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS LICENSED TO YOU "AS-IS," AND RR DONNELLEY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED PROMISES, REPRESENTATIONS, AND WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, INCLUDING BUT NOT LIMITED TO ITS CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, ITS COMPATIBILITY WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, WARRANTIES OF TITLE, AGAINST INFRINGEMENT, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. 7. DATA You acknowledge that the transmission of data via the Service is subject to the likelihood of human and machine errors, omissions, delays, and losses (including but not limited to viruses or inadvertent loss of data or damage to media) that may give rise to loss or damage. RR Donnelley will not be liable for any such errors, omissions, delays, or losses, except to the extent caused by its gross negligence or willful misconduct (and subject to all other terms and conditions of this Agreement). 8. DISCLAIMER OF LIABILITY IN NO EVENT WILL RR DONNELLEY (INCLUDING ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENT) OR ANY THIRD PARTY PROVIDER BE LIABLE TO YOU IN RELATION TO THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REVENUES OR SAVINGS, LOSS OF DATA OR COSTS OF RECREATING LOST DATA) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF RR DONNELLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE. FURTHER, THE AGGREGATE LIABILITY OF RR DONNELLEY (INCLUDING ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) AND ANY THIRD PARTY PROVIDER TO YOU IN RELATION TO THIS AGREEMENT WILL NOT IN ANY EVENT EXCEED THE AGGREGATE AMOUNT OF ONE THOUSAND DOLLARS ($1,000.00). THE FOREGOING NOTWITHSTANDING, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR OTHERWISE LIMIT ANY LIABILITY FOR (A) PERSONAL INJURY OR DEATH CAUSED DIRECTLY BY THE NEGLIGENCE OF RR DONNELLEY OR A THIRD PARTY; OR (B) FRAUDULENT MISREPRESENTATION; OR (C) WILLFUL MISCONDUCT. THE FOREGOING LIMITATIONS ARE A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER. 9. REMEDY You acknowledge that your breach of any of the provisions of this Agreement may cause immediate and irreparable harm to RR Donnelley for which RR Donnelley may not have an adequate remedy in money or damages. RR Donnelley will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and will be entitled to recover from you the costs incurred in seeking such an injunction. RR Donnelley's right to obtain injunctive relief will not limit its right to seek or obtain further remedies. 10. JURISDICTION This Agreement is governed by, and construed in accordance with, the laws of the State of Illinois, United States of America, without regard to conflict of law rules. The parties hereto (a) consent to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois, and (b) consent that any process or notice or motion or other application to the court or judge thereof may be served within or without the State of Illinois by registered or certified mail or internationally-recognized courier service, or by personal service, provided a reasonable time for appearance is allowed. 11. ASSIGNMENT You may not assign, novate or otherwise transfer any rights or obligations under this Agreement without RR Donnelley's prior written consent. Any attempted or purported assignment, delegation or other transfer by you without such consent shall be void. 12. SURVIVAL All provisions of this Agreement which expressly or by implication continue to govern the parties' rights and obligations after termination of use of the Service shall survive notwithstanding completion of any transaction or project in connection with which the Service is used. 13. CHANGES TO END USER AGREEMENT RR Donnelley will have the right to modify this End User Agreement from time to time. RR Donnelley will notify you of any such material modification by posting a notice on the Service that RR Donnelley has so modified the End User License Agreement. You understand and agree that your continued use of the Service following the posting of such notice indicates your acceptance of any such modifications, which will become a part of this Agreement. We will not post notification of non-material changes. BY ACCEPTING THIS AGREEMENT AND CONTINUING TO USE THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
© 2013 R.R. Donnelley & Sons Company