Terms of Use

These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) apply to and are incorporated by reference into the ordering document made by and between the Service Provider and the Customer and set forth the terms and conditions under which Service Provider will provide the Customer with access to certain applications as set forth on the Quote (“Application(s)”) and user documentation that Service Provider makes generally available in hard copy or electronic form to its general customer base in conjunction with the licensing of such Applications ("Documentation"). The Applications and the Documentation will hereinafter collectively be referred to as the “Software.”
1.1 Service Capacity
a. Up to 10 Seat Licenses. Additional Seat Licenses can be obtained at an upfront cost specified below.

2.0 License Grant
BC AND RFRE will provide CLIENT with a non- exclusive license to access BC AND RFRE's owned and/or leased computer systems and certain proprietary and licensed software and other information (the "Services") as upgraded from time to time. CLIENT may not use the Services as part of a commercial time-sharing or service- bureau operation or in any other resale capacity and shall use the Services solely for CLIENT’s own internal business purposes, subject to the terms and conditions of this Agreement. It is the intent of the parties that the CLIENT and its subsidiaries, affiliates, divisions and/or branches (“Related Enterprises”) shall use the Services and the license is specifically intended to allow such Related Enterprise to use the system and receive the benefits under this agreement, even if such Related Enterprises are separate legal entities. All rights not expressly granted to CLIENT are reserved by BC AND RFRE.

3.0 Responsibilities of Parties
CLIENT shall be responsible for the adequacy and accuracy of all data furnished to CLIENT’s account and BC AND RFRE. CLIENT shall provide CLIENT data to BC AND RFRE through BC AND RFRE’s data template, as provided by BC AND RFRE. CLIENT is responsible for the back-up of its data used in conjunction with the Services. BC AND RFRE will assign CLIENT one or more user IDs and passwords that will enable CLIENT to access the Services. CLIENT shall take reasonable precautions to protect against theft, loss or fraudulent use of such IDs and passwords. To the extent that any user of the Services leaves CLIENT’s employ, CLIENT shall promptly notify BC AND RFRE and that person’s access shall be disabled. CLIENT agrees that CLIENT will use the Services only for lawful purposes and in accordance with the terms of use as set out in this Agreement. CLIENT shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way, except as a normal course of business in using the Services for its internal business purposes; (ii) modify or make derivative works based upon the Services; (iii) reverse engineer or disassemble the Services; or (iv) remove, alter, obscure, or tamper with any trademark, copyright, or other proprietary markings or notices affixed to or contained within the Services

Subject to the terms of this agreement, BC AND RFRE will provide CLIENT the services in accordance with the Service Level Terms attached as Appendix “B”.

4.0 Use of Data
Unless BC AND RFRE has CLIENT’s written permission, BC AND RFRE will not disclose or share CLIENT’s company identifiable information with any third party (except as required by law or pursuant to a governmental request.) CLIENT understands and agrees that as part of the Services, CLIENT data will be aggregated with other data from other companies to develop certain industry standard data sets. Those data sets will be shared with other subscribers of the Service. BC AND RFRE will take all reasonable precautions to ensure that no other subscriber can reverse engineer the data set to determine the CLIENT’s specific data. Data sets may be used as part of other BC AND RFRE offerings including and other general educational classes and publications as BC AND RFRE may determine to be appropriate.

CLIENT is responsible for its activity in relation to CLIENT’s use of Services. CLIENT shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. CLIENT shall: (i) notify BC AND RFRE immediately in writing of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report in writing to BC AND RFRE immediately and use reasonable efforts to stop immediately any copying or distribution of Services that is known or suspected by CLIENT; and (iii) not impersonate another BC AND RFRE customer or provide false identity information to gain access to or use the Services.

5.0 Warranties
THE SERVICES ARE PROVIDED "AS IS”, AND BC AND RFRE DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. BC AND RFRE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES; PROVIDED HOWEVER, BC AND RFRE WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BC AND RFRE WARRANTS THAT THE SERVICES WILL PERFORM IN ACCORDANCE WITH THE DOCUMENTATION AND WILL NOT BE MATERIALLY DIMINISHED IN FUNCTIONALITY FOR THE TERM OF THE AGREEMENT.

6. INDEMNITY OBLIGATIONS

6.1. BC AND RFRE Indemnity Obligations

BC AND RFRE shall defend indemnify and hold the CLIENT Indemnitees harmless from and against Losses based on, arising out of or otherwise in connection with any claim (threatened or actual) made by a third party based upon infringement or misappropriation of any copyright, trade secret, trademark, patent or other proprietary or contractual right in connection with the Services provided under this Agreement or any Work Product furnished by BC AND RFRE to CLIENT under this Agreement.

BC AND RFRE further agrees that it shall defend, indemnify and hold harmless the CLIENT Indemnitees from and against any and all Losses based on, arising out of or otherwise in connection with: (a) damage to, destruction of, or loss of property, or the injury to or death of any employee, officer or agent of CLIENT, BC AND RFRE or any third party arising out of or in connection with BC AND RFRE’s performance of its obligations hereunder; (b) BC AND RFRE's breach of the Confidentiality section and any representation, warranty, or obligation under this Agreement; and (c) the gross negligence or willful misconduct of BC AND RFRE or its Personnel.

6.2. Client Indemnity Obligations

Client shall indemnify for Gross Neglience, or willful misconduct.

6.3. Conditions

With regard to the indemnification provisions in Paragraphs 6.1 and 6.2, the indemnifying Party shall be notified as soon as practicable of any such claim and shall have the right to control the defense of all such claims and related lawsuits or proceedings. In no event shall the indemnified Party settle any such claim, lawsuit or proceeding without the indemnifying Party’s prior approval, which will not be unreasonably withheld, delayed or conditioned. Each Party shall provide the other with reasonable cooperation required for the defense and settlement.

7.0 Limitation of Liability
Neither BC AND RFRE nor Client shall be liable to the other party for any indirect, incidental, special or consequential damages (including, without limitation, any damages arising from loss of use or lost business, revenue, profits, data or goodwill) arising in connection with this Agreement, whether in an action in contract, tort, strict liability or negligence, or other actions, even if advised of the possibility of such damages. Neither BC AND RFRE's nor Client’s liability to the other party for direct damages shall exceed the total amount paid or payable by Client under this Agreement. The foregoing exclusions of and limitations on liability shall not apply to: (a) amounts payable in respect of indemnification claims; or (b) damages arising from or related to: (i) breaches of the Confidentiality section of this Agreement; or (ii) a party’s willful misconduct or gross negligence

8.0 Term
The Term of the Agreement shall begin on the initial service date and shall run for 12 months ("Initial Term"). This Agreement will remain in effect for the Term. Upon 30 days written notice to BC AND RFRE, Client may terminate this Agreement or any related document without liability, other than payments due for valid charges incurred for conforming Services or Work Product accepted through the effective date of termination. BC AND RFRE shall continue to provide Services during said notice period solely to the extent requested by Client.
Upon expiration or termination of this Agreement, BC AND RFRE will promptly deliver to Client all Client Property, all Work Product, and all work-in-process, if any.

8.1 Automatic Renewal
Unless the Customer Agreement specifically states otherwise, and/or the customer provides BC AND RFRE with written notice of cancellation at least 30 days prior to the end of the current contract term, the contract will automatically renew for a period of one year. This notice must be sent to our designated email or mailing address, which will be provided to the customer upon signing the contract and may be updated from time to time.


8.2 Cancellation Notice
To cancel any contract with BC AND RFRE, the customer must provide us with written notice at least 30 days prior to the desired cancellation date.

8.3 Payment Acceleration Clause
If a customer pays late 3 or more times within any given contract year, BC AND RFRE reserves the right, at its sole discretion, to accelerate payment on the entire lump sum or annual amount due. This means that the entire remaining balance will become due immediately.

8.4 Due Date for Payments
Alll payments are due on the first day of each month. If a payment is not received by the Due Date, a late fee may be applied as per the terms outlined in our late payment policy.

If one party defaults in the performance of, or fails to perform, any of its material obligations under this Agreement, and such default is not remedied within thirty
(30) days of the receipt of written notice from the non-defaulting party, then the non-defaulting party shall have the right to terminate this Agreement by providing written notice of termination to the other party and may avail itself of any and all rights and remedies to which it may be entitled by law or in equity or under this Agreement.

9.0 Fee
a. Annual: CLIENT shall pay BC AND RFRE a fee in the amount specified above. Payments will be due in full per the Payment Due Date.

b. Additional seat licenses can be added at an upfront cost of $150.00 annually per Seat License.

c. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

d. Taxes: Unless otherwise stated, BC AND RFRE’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, "Taxes"). If BC AND RFRE has the legal obligation to pay or collect Taxes for which CLIENT is responsible under this section, the appropriate amount shall be invoiced to and paid by CLIENT, unless CLIENT provides BC AND RFRE with a valid tax exemption certificate authorized by the appropriate taxing authority.

10.0 Confidentiality

Neither party shall not use the name of the other party, or any contraction, abbreviation or simulation thereof, or any trademark, trade name or other device belonging to that party respectively, without the prior written approval of that party. No news releases, advertising or promotional releases of any kind relating to this Agreement or the work hereunder shall be issued by either party without the prior written approval of the other party. Such written approval shall not be unreasonably withheld.

Neither party shall not divulge without the prior written consent of the other party confidential information, which includes all information contained in the Services, or which is otherwise received from either party in connection with this Agreement for a period of five (5) years after the termination of this Agreement. With regard to oral disclosures by either party, the obligations of either party thereunder shall be to exercise its best efforts.

Neither Party shall publish or make known to others the subject matter or information contained in the Services, without prior written approval.

11.0 MARKETING

Without prior written approval to be given in Customer’s sole discretion, Customer may allow RefineRE to list Customer’s name and logo on the RefineRE website, which will be listed no more prominently than any other Customer. Upon Customer’s prior written consent, which may be withheld in its sole discretion, Customer agrees to: (a) allow RefineRE to publish one press release announcing Customer’s selection of RefineRE, which will not be published without Customer’s prior consent (which consent shall not be unreasonably withheld); (b) after completion of implementation of the Software, assist RefineRE in the creation of a case study on the Customer’s success using the Software; and (c) after go-live of the Software, provide a video testimonial on the success of the Software. RefineRE agrees to minimize the time required by the Customer’s resources in the creation of the case study. The Customer’s role will be to provide information and review the case study for approval .The case study will not be published without prior written consent of the Customer (which consent shall not be unreasonably withheld); RefineRE will bear all costs related to the production and publication of this video, and the Customer will bear no cost at all from this effort. Customer has final edit rights on this video, and Customer approves use of this video on the RefineRE website.


12.0 Assignment
This Agreement may not be assigned by either party without the prior written consent of the other.

13.0 Entire Agreement and Modification
This Agreement and any contemporaneously executed rider contain the entire agreement between the parties and supersede all previous agreement between them. Each party acknowledges that it has read this Agreement and understands its full force and effect. This Agreement may not be modified except by a later written agreement signed by both parties.

14.0 Governing Law
This agreement shall be construed in accordance with the laws of the State of Delaware and/or Texas as appropriate, and the parties agree that any and all disputes pertaining to its interpretation and enforcement shall be adjudicated solely in the courts of the United States. Thus, all disputes arising under this Agreement shall be resolved in any state or federal court in the State of Texas and CLIENT agrees, solely for purposes of this Agreement, to submit to the personal jurisdiction of that court. If either party takes legal action to enforce rights under this Agreement, the losing party to such litigation shall be financially responsible for the expenses of the action for both parties, including, but not limited to, court costs and attorneys’ fees.

15.0 General.

a. Neither party will be responsible for failure to meet obligations due to causes beyond their reasonable control and which occurs without its fault or negligence, provided that such party immediately notifies the other party in writing and that such party exercises diligence to remove or overcome the cause(s) of the delay.
b. This Agreement does not create any agency, partnership or other such relationship between the parties.
c. Any waivers under this Agreement must be in writing and signed by the party against whom it is to be enforced. No waiver of any breach of any provisions constitutes a waiver of any other or subsequent breach.
d. Other than routine communications made in the ordinary course of performing any obligations under this agreement, all notices or other communications required or permitted to be given under this agreement shall be in writing and shall be deemed to have been sufficiently given when delivered in person or by responsible courier when deposited with the United States Postal Service, first class registered or certified mail, postage prepaid, addressed as follows:


If to BC AND RFRE:
RefineRE Legal Department
3131 Turtle Creek
Suite 880
Dallas TX, 75219

If any provision or part of any provision in this agreement is void for any reason, it shall be severed without affecting the validity of the balance of the agreement.

Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.

EXHIBIT B
To RefineRE Order Form

Support Terms
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Central time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing support@refinere1.wpenginepowered.com or by contacting your designated Customer Success Manager.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.