This Beta User Agreement (“Agreement”) is entered into and effective as of the date that GreenStats and User (as each term is defined below) have both signed this Agreement as set forth on the signature page hereto (the “Effective Date”), by and between GreenStats LLC, a Kentucky limited liability company (“GreenStats”) and The User Party Identified on the Signature Page Hereto (“User”).
- A. GreenStats has developed a software as a service platform for real estate agents and real estate business use, which includes, without limitation, the code, modifications, enhancements, improvements, updates, and additions thereto, along with derivative works, documentation, and related material (collectively, the “Service”).
- B. GreenStats desires that the Service be tested for a period of time prior to the general release of the Service (the “Beta Period”), and said Beta Period shall last for no more than  days after the Effective Date.
- C. User desires to serve, and GreenStats desires for User to serve, as a test user for the Service during the Beta Period.
- D. GreenStats and User desire to undertake such other obligations and receive such other benefits in accordance with the terms of this Agreement.
Now, Therefore, in consideration of the covenants, promises, representations, warranties and conditions contained herein, the receipt and sufficiency of which is mutually acknowledged, GreenStats and User hereby agree as follows:
- 1. GreenStats’ License. GreenStats grants to User a limited, non-exclusive, and non-transferable license (without the right to sublicense) to access and use the Service during the Term (as defined below) solely for testing purposes in connection with User’s own internal business operations, and otherwise in accordance with the terms of this Agreement.
- 2.User’s Obligations. During the Term, User shall:
(i) Use the Service under normally expected and reasonable operating conditions in User’s environment on a daily basis;
(ii) Promptly notify GreenStats of any and all problems or issues encountered by User with respect to the Service and User’s access thereto and use thereof, including any bugs, errors or limitations on usability observed by or reported to User (“Reports”);
(iii) Provide GreenStats with any ideas, suggestions, comments and feedback User may have for enhancements, improvements, or modifications to the Service (“Feedback”); and
(iv) Serve as a reference for GreenStats with respect to its Service-related marketing and sales efforts.
- 3. Term and Termination. This Agreement shall commence on the Effective Date and shall last through the conclusion of the Beta Period (“Term”). Notwithstanding anything in this Agreement to the contrary, either GreenStats or User may terminate upon five days’ prior notice to the other. In the event User breaches any term of this Agreement, GreenStats may terminate this Agreement upon notice to User.
- 4. Ownership of Service. User acknowledges and agrees that the Service and any related property, rights, title, and interest, including, without limitation, any patents, trademarks, service marks, copyrights, trade secrets, mask works, moral rights, Feedback and all other intellectual property rights (the “Associated Rights”), are the sole and exclusive property of GreenStats. Other than the limited license granted to User in this Agreement, no other rights in and to the Service or the Associated Rights are granted or transferred to User and are expressly reserved to GreenStats.
- 5. Prohibited Uses. User shall not:
(i) Demonstrate, sell, or market the Service to any third party;
(ii) Copy the Service, or any portion thereof, including, without limitation, its design, code, and performance specifications;
(iii) Publish or otherwise disclose information relating to the performance or quality of the Service to any third party;
(iv) Modify, reuse, disassemble, decompile, reverse engineer, or otherwise translate or localize the Service or any portion thereof;
(v) Create any derivative works from the Service or any portion thereof;
(vi) Sublicense or otherwise permit, encourage, or facilitate access to or use of the Service by any third party;
(vii) Remove or alter any trademark, service mark, logo, copyright, or other proprietary notices, legends, symbols, or labels on or in the Service;
(viii) Access or use the Service for any competitive purpose;
(ix) Access or use the Service for any illegal or unauthorized purpose; or
(x) Attempt to do, or otherwise permit, encourage, or facilitate any third party to do any of the foregoing.
- 6. User Conduct. User acknowledges and agrees that User is responsible for its own conduct when accessing or using the Service, along with any consequences resulting therefrom. User shall not, nor shall User permit, encourage, or facilitate any third party to:
(i) Restrict or inhibit any other user from accessing, using, or enjoying the Service;
(ii) Interfere with or disrupt the Service or the servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
(iii) Create a user account using false or misleading information; or
(iv) Transmit any harmful or destructive material, including, without limitation, viruses, worms, defects, Trojan horses, and the like.
- 7. No Conflict. User’s entrance into this Agreement, its access to and use of the Service, and its performance of its obligations under the terms of this Agreement shall not violate any applicable local, state, national, or international law or regulation, or any right of any third party, including, without limitation, contractual rights, legal rights, and rights in connection with any trade secret, intellectual property right, proprietary right, or right of publicity or privacy.
- 8. User Content. Any information provided by User to GreenStats to facilitate or support User’s access to or use of the Service, or generated on account of User’s access to or use of the Service is collectively referred to as “User Content.” User hereby represents and warrants that all User Content shall be truthful, accurate, complete, and not misleading, and that no provision of User Content by User to GreenStats shall violate any law or regulation or right of any third party (contractual, legal, or otherwise). The User is solely responsible for ensuring that all laws are complied with when providing User Content that relates to individuals other than the User, including obtaining appropriate consent for providing information relating to that individual to GreenStats. User hereby grants to GreenStats a perpetual, royalty free license to use, modify, create derivative works of, and sublicense the User Content.
- 9. Confidential Information. The parties acknowledge and agree that as a consequence of entering into and executing this Agreement and performing their respective obligations under the terms of this Agreement, each party (the “Disclosing Party”) may share certain non-public, confidential, and proprietary information (the “Confidential Information”) with the other party (the “Receiving Party”). GreenStats’ Confidential Information includes, without limitation, the Service and the Associated Rights. The Receiving Party shall: (i) fully protect and safeguard the Disclosing Party’s Confidential Information with no less care than it takes to protect its own non-public, proprietary, and confidential information, but in no event shall such care be less than a commercially reasonable standard of care; (ii) not disclose the Disclosing Party’s Confidential Information to any third party; (iii) not use, in any way, the Disclosing Party’s Confidential Information for any purpose other than those purposes contemplated by this Agreement; (iv) not permit, facilitate, or encourage the Disclosing Party’s Confidential Information to be accessed or used by any third party; and (v) notify the Disclosing Party of any unauthorized access to or use of the Confidential Information, or any portion thereof.
- 10. Disclaimer. User acknowledges and agrees that:
i) The Service is being provided in beta form for the purpose of testing, evaluating, and obtaining feedback and suggestions about the Service, its usability, and functionality;
(ii) The Service consists of prerelease code and is not at the level of performance or compatibility of a final, generally available product offering;
(iii) The Service may not operate correctly and may be substantially modified or withdrawn prior to general availability;
(iv) The Service is provided on and “as is” and “as available” basis and GreenStats disclaims any and all representations and warranties of any kind, whether express or implied, including the implied warranties of merchantability, fitness for a particular purposes, and non-infringement, to the extent authorized by law;
(v) GreenStats makes no representation or warranty, including such that:
(a) The Service will meet the User’s requirements,
(b) The Service will be uninterrupted, timely, secure, or error-free,
(c) The results that may be obtained from User’s access to or use of the Service will be accurate or reliable,
(d) The quality of any products, services, information, or other material obtained by User through the service will meet User’s expectations, or
(e) Any errors or defects in the Service will be corrected;
(vi) Access to or use of the Service is done at User’s own discretion and risk, and User shall be solely responsible for any damage or loss to its computer systems or loss or corruption of data that results from such access or use;
(vii) No advice or information, whether oral or written, obtained by User from GreenStats or through or from User’s access to or use of the Service shall create any warranty not expressly stated in this Agreement;
(viii) GreenStats may elect not to introduce make the Service generally available to the public, and it makes no obligation or commitment to User to do so; and
(ix) any data User enters into the Service, and any customizations made to the Service by or for User, will be permanently lost unless User purchases a subscription to the Service, or such data is exported before the end of the Term by User.
- 11. limitation of liability. In no event shall GreenStats be liable for any damage or loss whatsoever connected with, arising out of, or related to this Agreement or User’s access to or use of (or user’s inability to access or use) the Service, even if GreenStats has been advised of the possibility of such damage or loss. User waives any and all claims or causes of action User may have against GreenStats , individually or in the aggregate, which arise from, relate to, or are connected with this Agreement or User’s access to or use of (or User’s inability to access or use) the Service, including breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentation, and any other tort. In no event shall GreenStats be liable to User for any direct, indirect, incidental, consequential, special, exemplary, or punitive damages or lost profits whatsoever which arise from, relate to, or are connected with this Agreement or User’s access to or use of (or User’s inability to access or use) the Service, even if GreenStats has been advised of the possibility of such damages. User’s only recourse for any claim or cause of action, or any damage or loss, which arises from, relates to, or is connected with this Agreement or User’s access to or use of (or User’ inability to access or use) the Service shall be the termination of this Agreement.
- 12. Third-Party Data Sources. User provides log-in credentials (“Credentials”) to User’s account(s) for the Service accounts at User’s own risk. User agrees that the data sources that maintain User’s accounts and any third parties that interact with User’s Credentials or account data in connection with the Service are not liable for any loss, theft, compromise, or misuse whatsoever in connection with the Service (including negligence), except to the extent such liability cannot be limited under applicable law. GreenStats makes no warranties of any kind related to the data provided by the service, whether express, implied, statutory, or otherwise. Except for PDFs of official account documents GreenStats retrieves on User’s behalf and provides to User without alteration, no data provided by the Service is an official record of any of User’s accounts.
- 13. Governing Law; Venue. This Agreement shall be governed and enforced by and interpreted in accordance with the laws of the Commonwealth of Kentucky without giving effect to its conflicts of laws rules and principles. GreenStats and User irrevocably agree to the exclusive jurisdiction of the courts located within Jefferson County, Kentucky for any claim, dispute, or matter arising out of, in connection with, or concerning this Agreement. GreenStats and User waive any objection to proceedings in such courts on the grounds of improper venue or inconvenient forum.
- 14. Severability. In the event that any provision of this Agreement shall be determined to be invalid or unenforceable, such provision shall be deemed limited by construction in scope and effect to the minimum extent necessary to render the same valid and enforceable, and, in the event such a limiting construction is impossible, such invalid or unenforceable provision shall be deemed severed from this Agreement, but every other provision of this Agreement shall remain in full force and effect.
- 15. Survival. User’s obligations under this Agreement shall survive the expiration or earlier termination hereof.
- 16. Remedies. User agrees that any breach of this Agreement by User will result in immediate and irreparable injury to GreenStats in an amount that is difficult to ascertain. Therefore, GreenStats shall be entitled to obtain, at its sole discretion, equitable remedies, including, without limitation, specific performance and injunctive relief, without the necessity of posting a bond or other undertakings therewith. The right to seek equitable relief is in addition to all other rights and remedies otherwise available to GreenStats, including, without limitation, recovering from User for damages and reasonable attorneys’ fees incurred during GreenStats’ enforcement of this Agreement or any part hereof. All of GreenStats’ remedies for any breach of this Agreement shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedies.
- 17. Indemnification. User agrees to indemnify, defend, and hold harmless GreenStats and its affiliates and their respective members, managers, employees, agents, and representatives (each an “Indemnified Party” and collectively the “Indemnified Parties”) harmless from and against any and all liability, damages, loss, costs and expenses incurred by an Indemnified Party (including, without limitation, fines, penalties, costs, and expenses, including reasonable attorneys’, incurred by any of the Indemnified Parties) arising from or relating to User’s breach of this Agreement or violation of applicable law.
- 18. Attorneys’ Fees. Each party shall bear its own costs and attorneys’ fees incurred in discussions regarding the parties leading up to and including the preparation of this Agreement or any modification of this Agreement. If, however, any action at law or in equity is brought by GreenStats to enforce or interpret the terms of this Agreement, GreenStats shall be entitled to recovery of reasonable attorneys’ fees and costs from User.
- 19. Assignability; Delegation. This Agreement and the rights and duties created hereunder shall not be assignable or delegable by User without the prior written consent of GreenStats. Except as otherwise provided herein, any such purported assignment or delegation shall be null and void. Nothing herein shall prevent GreenStats from assigning this Agreement or delegating its obligations hereunder.
- 20. Entire Agreement; Modification. This Agreement and the Privacy Notice constitute the complete and exclusive statement of the agreement between GreenStats and User regarding the subject matter contained herein, which supersedes all other prior proposals, understandings, and agreements between the parties relating to the subject matter of this Agreement. No section, obligation, term, or provision of or under this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by an authorized representative of each of the parties.
- 21. Counterparts. This Agreement may be executed in counterparts, including counterparts exchanged via email in PDF format, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.