BestPlanPro End User License Agreement v.1.0 January 31, 2019
This End User License Agreement (the “Agreement”) is between Software Automation Holdings, LLC (“Licensor”) and you, the end user (either as an individual or a single business entity, collectively as “You” or “Your”). By clicking the “accept” button at the end of the Agreement, or by using the Software, or by installing the Software, you accept the following terms and conditions. This license shall supersede any verbal, or prior written, statement or agreement. If you do not understand or accept these terms, you must cease and desist using this Software immediately. Copyright laws supersede all local regulations. Any rights not expressly granted herein are reserved by Licensor.
1. Agreement: This Agreement states the terms and conditions under which you are permitted to use the BestPlanPro software and associated products. As used in this Agreement, the term “Software” means the BestPlanPro software and any associated products including, without limitation, computer software, associated media, printed materials, electronic documentation, source code, online software made available for download by Licensor, plug-ins, and any updates or new versions provided to you by Licensor to operate with the Software.
2. Ownership: The Software is proprietary to Licensor and/or its licensors, and is protected under applicable United States and International copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. All right, title and interest in and to the Software, including all copies thereof, shall remain with Licensor. This Agreement does NOT constitute a sale of the Software, but only conveys to you a limited right to use the Software in accordance with the terms of this Agreement. Licensor and/or its licensors own and retain all worldwide rights, title, copyright ownership, and other interests in and to the Software including, without limitation, all source code, object code, executable code, libraries, and audio, video, text and graphical representations, such as screen layouts and web pages. The Software is protected by copyright laws and other international treaty provisions. Therefore, you must treat the software like any other copyrighted material, subject to the provisions of this Agreement.
3. Scope and Grant of License:
(a) Licensor hereby grants to you a limited, revocable, nonexclusive, nontransferable license to install and use the Software on a non-networked local drive of one (1) device owned by you or under your legitimate control, for use by one (1) person at a time, solely for the Licensed Purpose. The Software may NOT be stored on a networked drive or by any other method that would allow anyone other than you to access and use the Software. As used in this Agreement, the “Licensed Purpose” is defined as sorting insurance plans by user-inputted criteria, comparing rates from various competing insurers and the sale and solicitation of insurance only and does not include reselling, sharing with other unaffiliated users or operation by others in any capacity.
(b) In order to use and/or install the Software, you will be required to create an account (the “Account”) by registering as a user at a web page identified by Licensor and authenticate the software with a purchasing email and order identification number. You agree to: (i) provide true, accurate, current and complete information about yourself (“Registration Data”) as prompted by accessing any website or webpage operated by Licensor, and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete by contacting Licensor. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Licensor has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, then Licensor has the right to suspend or terminate your license.
(c) You are responsible for maintaining the confidentiality of your registration account, and are fully responsible for all activities that occur under your registration. You will NOT allow others to use your login information or access your account. You will notify Licensor of any breach in secrecy of your account information and take reasonable precautions to ensure that such information is not made available to others. You agree to immediately notify Licensor of any potential breaches of secrecy or unauthorized access/use of your registered account, or of the fraudulent use of your account information. Licensor reserves the right to suspend, deactivate, or replace user names and passwords at any time for any reason.
(a) You may not use, copy, modify, embed, translate, or transfer the Software or any copy except as expressly defined in this Agreement. You may not attempt to unlock or bypass any copy protection or authentication algorithm utilized by the Software. You may not modify any copyright notice, or any “about” dialog or the method by which it may be invoked.
(b) You shall not decompile, disassemble or reverse engineer, reverse translate or in any manner decode the Software.
(c) You shall not manually or programatically scrape rates for collection and/or aggregation purposes outside of the Software.
5. Limitation of Use: You may not modify, copy, distribute, transmit, display, embed, perform, reproduce, publish, license, create derivative works from, transfer, rent, or sell any information, software, products or services obtained from the Software. Without the advance express written permission of Licensor, you may not send, or cause to be sent or any automated queries of any sort to the Software.
6. No Unlawful or Prohibited Use:
(a) As a condition of your use of the Software, you will not use the Software for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Software in any manner that could damage, disable, overburden, or impair the Software (or the network(s) connected to the Software) or interfere with any other party’s use and enjoyment of the Software. You may not attempt to gain unauthorized access to the Software, other accounts, computer systems or networks connected to the Software, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Software. You may not use the Software to develop a product and/or service that competes with the Software.
(b) You agree not to interfere with or disrupt any services provided by Licensor, networks or servers operated by Licensor, such as by attempting to probe, scan or test the vulnerability of a system, or network or to breach security or authentication measures, attempting to interfere with service of any user, host or network, such as by overloading, spamming, flooding, mailbombing or crashing, sending of unsolicited email, including promotions and/or advertising of products of services, or forging any TCP/IP packet header.
(c) You are responsible for maintaining the confidentiality of your account username, password, purchasing email and order identification number. You are responsible for all uses of your account, whether or not actually or expressly authorized by you. If there is a breach of the confidentiality of a username or password assigned to you, or any breach of security through your account, then you should notify Licensor immediately. You agree to not create a false identity or impersonate another for the purpose of misleading others or Licensor as to the identity of a user. You also agree not to attempt to gain unauthorized access to any site, login or systems owned or operated by Licensor.
7. Copyright Notice: The Software (in whole or in part, including all files, data, documentation, and web pages), is Copyright 2019 Zach Bornheimer, all rights reserved, and is protected by United States copyright laws, international treaties and all other applicable national or international laws. The Software may not, in whole or in part, be copied, photocopied, translated, or reduced to any electronic medium or machine readable form, without prior consent in writing, from Licensor and according to all applicable laws. The sole owner of this Software is Licensor.
8. Liability disclaimers:
(a) Licensor has made every reasonable effort to assure the accuracy of the information provided by the Software. However, Licensor makes no warranties or guarantees to the accuracy of this information. While Licensor strives to maintain an accurate database of current rates, human and rounding errors can occur and therefore Licensor cannot guarantee accuracy. While it is our goal to give you the most accurate quote possible, the actual premium will be determined by the insurer. The Software is a comparative rating tool and should not be considered a substitute or replacement for the individual carrier’s published rates or proprietary rating system. In all cases, the individual company’s published rates and rating tools shall be considered the authoritative answer with respect to calculated premiums and underwriting decisions. The materials provided by the Software could include technical, typographical, or photographic errors.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE AND THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES MAY NOT BE EXCLUDED BY LAW. LICENSOR PROVIDES THE SOFTWARE ON COMMERCIALLY REASONABLE BASIS AND DOES NOT WARRANT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT YOU WILL BE ABLE TO ACCESS OR USE THE SOFTWARE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT LICENSOR WILL HAVE ADEQUATE CAPACITY FOR THE SOFTWARE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. USE OF THE SOFTWARE IS AT YOUR SOLE RISK.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH LICENSOR OR ITS LICENSORS IS TO STOP USING THE SOFTWARE AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT LICENSOR, ITS LICENSORS AND AFFILIATES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT IN THE SOFTWARE OR USE OF THE SOFTWARE. IN NO CASE SHALL LICENSOR OR ITS LICENSORS, AFFILIATES’, EMPLOYEES’, OFFICERS’, OR DIRECTORS’ (COLLECTIVELY, “LICENSOR AFFILIATES”) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO LICENSOR FOR SOFTWARE. IN NO CASE SHALL LICENSOR OR LICENSOR AFFILIATES BE LIABLE FOR DIRECT, GENERAL, INCIDENTAL, SPECIAL. OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR REVENUES, ARISING FROM YOUR USE OF THE SOFTWARE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SOFTWARE. LICENSOR DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH LICENSOR AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
(d) Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, implied warranties or implied warranties as they relate to sales to consumers. Accordingly, the exclusion or limitation of these damages, etc. are only to the maximum extent permitted by law, and do not apply in some jurisdictions.
(a) You represent and warrant that your use of the Software for the Licensed Purpose complies with all applicable laws and regulations. Without limiting the generality of the foregoing, you are solely responsible for compliance with all applicable laws and regulations.
(b) Upon Licensor’s request, you agree to defend, indemnify and hold harmless Licensor and its affiliates, employees, contractors, officers, directors, vendors, and content providers from all liabilities, claims and expenses, including attorneys’ fees, that arise from a breach of this Agreement for which you are responsible. Without limiting the generality of the foregoing, you agree to indemnify and hold Licensor harmless for any improper or illegal use of your Account, including the illegal or improper use of your Account by someone to whom you have given permission to use your Account. You agree that you will be personally responsible for your use of the Software, and that you will indemnify and hold harmless Licensor, its affiliates, employees, officers, and directors from any liability or damages arising from your use of the Software.
(c) Licensor reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to Licensor in that matter.
(d) Some jurisdictions do not allow the foregoing indemnities as they relate to sales to consumers. Accordingly, these indemnities are only to the maximum extent permitted by law, and do not apply in some jurisdictions.
10. Disputes and Binding Arbitration:
(a) Equitable Remedies. You hereby acknowledge and agree that Licensor would suffer irreparable harm if this Agreement was not specifically enforced. Consequently, in addition to such monetary and other relief as may be recoverable at law, you agree that Licensor shall be entitled to specific performance or other injunctive relief, without bond, other security, or proof of damages, as remedy for any breach or threatened breach of this Agreement. Additionally, in the event any legal or administrative action or proceeding is brought by either party in connection with this Agreement or the and consistent with the terms of this Section, the prevailing party in such action or proceeding shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party as the result of the action or proceeding.
(b) Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Licensor agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. Licensor will send its notice to your billing address (if provided) and email you a copy to the email address you have provided to us. You agree to send your notice to Software Automation Holdings, LLC, 140 Towerview Court, Suite 111, Cary, North Carolina 27513 with a copy via email to [email protected].
(c) Binding Arbitration. If you and Licensor are unable to resolve a Dispute through informal negotiations, either you or Licensor may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND AND HEREBY AGREE THAT YOU HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Licensor will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Licensor may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
(d) Restrictions on Dispute Proceedings. You and Licensor agree that any arbitration shall be limited to the Dispute between Licensor and you individually. To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
(e) Location. Any arbitration shall be initiated in Wake County, State of North Carolina, United States of America. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within Wake County, State of North Carolina, United States of America, and you and Licensor agree to submit to the personal jurisdiction of that court. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11. Termination: This Agreement (and all subsequent modifications, if any) shall remain effective until terminated. Both you and Licensor may terminate this Agreement at any time for any reason or for no reason. Termination by Agreement will be effective upon notice to you, termination or deletion of your Account, or its decision to permanently discontinue offering and/or supporting the Software, which it may do at any time in its sole discretion. You may terminate this Agreement (and, consequently, your Account, at any time by notifying Licensor at [email protected] Upon termination of this Agreement by Licensor, your right to use the Software shall immediately cease. The following provisions shall survive any termination of this Agreement: Sections 8, 9, 10, and 14(e).
12. Refund/Cancellation Policy: Licensor offers a no questions asked 30 day refund policy. For all purchases, you may cancel during the first thirty (30) days (calculated from the date of purchase or renewal date plus any free trial period, if applicable) and receive a full refund. If the cancellation occurs after the first 30 days, you will not receive a refund. Monthly subscriptions may be cancelled at any time but you are not eligible for a refund. You may cancel their renewal subscription your subscription to the Software by clicking on the cancellation link in the billing tab within your profile. If you cancel your subscription but are not eligible for a refund, you will retain access to the Software until your subscription expires. All eligible refunds will be processed back to the credit card that was originally used for purchase. Eligible refunds are processed within 1 business day. Please allow up to 5 business days for the refund to be credited back to your account.
14. General Terms:
(a) Remedies. You agree that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. You also understand and agree that this Agreement, including Licensor’s enforcement thereof, are not intended to confer, and do not confer, any rights or remedies upon any person.
(b) Severability. If any part of this Agreement is held invalid or unenforceable, that portion shall be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of Licensor, and the remaining portions shall remain in full force and effect.
(c) Waiver. The failure of Licensor to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision, any such waiver being effective only if in a writing signed by Licensor.
(d) Force Majeure. Licensor shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Licensor, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond Licensor’s control such as acts of god, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
(e) Governing Law. The laws of North Carolina, excluding its conflicts-of-law rules, govern this Agreement, and your Account(s); and you expressly agree that exclusive jurisdiction for any claim or dispute with Licensor or relating in any way to this Agreement, your Account(s), or your use of Software resides in the Courts of the State of North Carolina, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of North Carolina in connection with any such dispute including any claim involving Licensor or its affiliates, employees, contractors, officers, directors, vendors and content providers.
(f) Entire Agreement. This Agreement constitutes the entire agreement between you and Licensor relating to your rights and obligations in the use of the Software. If there is any conflict between this Agreement and any other terms or agreement, Licensor shall resolve the conflict in its sole discretion.