PLEASE READ THESE TERMS OF USE CAREFULLY. DOWNLOADING, INSTALLING, ACCESSING, RECEIVING DISPATCHES OR USING THIS WATER TRACKER MOBILE APPLICATION OR CLICKING THE ACCEPT OPTION OR LOGGING INTO THE WEB APPLICATION (THE “APPLICATION”) CONSTITUTES ACCEPTANCE OF THESE TERMS OF USE (“TERMS”) AS SUCH MAYBE REVISED BY PROMATIC SOFTWARE FROM TIME TO TIME, AND IT IS A BINDING AGREEMENT BETWEEN THE USER (“USER”) AND PROMATIC SOFTWARE LTD GOVERNING THE USE OF THE APPLICATION. IF USER DOES NOT AGREE TO THESE TERMS USER SHOULD UNINSTALL THIS APPLICATION IMMEDIATE AND COMPLY WITH ALL TERMINATION PROVISIONS OUTLINED BELOW. THESE TERMS contain disclaimers and other provisions that limit our liability to user.
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is for both WaterTracker and WorkTracker and is made as of the date you click the “Accept” option and is between you the user and Promatic Software Ltd.
1.1 Promatic agrees that they have no rights to or ownership of any data entered into or uploaded into the software (identified in Attachment “A” and support materials hereinafter the “Software”) by the Client or its employees or agents. Upon Termination or conclusion of this agreement the Client has 30 days to remove any and all of their data including files, documents and photos they have uploaded to and entered into the Software.
1.2 All data uploaded into the Software will be stored for 1 year from the data of original upload.
1.3 The Client understands that job specific performance, readings including photos and equipment usage, labor, notes and dates and time may be shared only with the insurance company or job assignment provider and or Xactware to validate the on-site arrival, timing and resources provided by the Client. The Client agrees that staff progress to the job site will be shared with the property owner.
1.4 Notice: The Client acknowledges and accepts that it has been made aware that the Software will track the movement of both property and people. Promatic is not responsible for the use of the data by the Client or the job provider. You acknowledge that your employer may monitor your movements during work hours in order to increase operational efficiencies, improving customer service, maintain accurate timekeeping records and improve safety, should the user become incapacitated. The Client specifically waives and holds harmless Promatic for any action regarding the collection or use of this information. This information obtained from monitoring will be disclosed to your company/employer and to the company that has hired your company’s services.
2.1 Representation. Promatic represents that it is the owner of the Software and all portions thereto.
2.2 Modifications. Only Promatic shall have the right to modify, maintain, enhance or otherwise alter the Software.
2.3 Transfer. Under no circumstances shall the Client transfer or assign in any manner whatsoever, in whole or in part, the Software or any copy thereof, without prior written consent, such consent may not be unreasonably withheld.
3.1 The Software is proprietary to Promatic and title to it remains with Promatic. All applicable rights to copyrights, trade secrets, patents and trademarks in the Software or any modifications or enhancements made by Promatic or the Client or at the Client's request shall remain with Promatic. The Client shall not sell, publish, disclose, display or otherwise make available the Software or copies thereof to others. The Client agrees to secure and protect the Software in a manner consistent with the maintenance of rights therein and to take appropriate action by instruction or agreement with its employees, agents or consultants who are permitted access to the Software to satisfy the Client's obligations hereunder.
4.1 Grant of License. Promatic hereby grants to the Client, pursuant to the terms and conditions contained herein, a 30 day, non-exclusive, non-transferable, non-sublicenseable and non-assignable (except as otherwise provided herein) License to use the Software. This Agreement will automatically renew every 30 days for an additional 30 days, unless terminated by either party with at least 30 days written notice. A description of the Software is included as Attachment A.
4.2 Changes. Promatic can at any time modify the terms and conditions of this Software License Agreement, including pricing by client user’s acceptance of the revised license agreement presented on the mobile device prior to accessing the application and the use of the application further constitutes acceptance of these modified terms. This electronic acceptance by the user is legal and binding. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement
4.3 Use on Designated Equipment. The Software shall be used only for the Client's own business. The Client shall not: A) permit any parent, subsidiaries, affiliated entities or third parties to use the Software, B) process or permit to be processed the data of any party, C) use the Software in the operation of a service bureau.
4.4 The Client agrees not to: (i) disassemble, reverse engineer, decompile, modify, or translate the Software except as otherwise expressly permitted by applicable law that is incapable of exclusion by agreement between the parties; (ii) provide or grant any rights in the Software in any form to any third party whether by lease, sublicense, rental, transfer, assignment, or other distribution, including in a hosting, service bureau or other commercial time-sharing environment; or (iii) copy the Software. The Client agrees to keep the Software free and clear of all claims, liens, and encumbrances.
4.5 The Client acquires only the right to use the Software as set forth in this Agreement and does not acquire any rights of ownership. The Client acknowledges and agrees that Promatic owns all worldwide rights, title and interest in and to the Software, including all worldwide patent rights, copyrights, trade marks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world (collectively, “Intellectual Property Rights”) in the Software and that such Intellectual Property Rights are and shall remain the property of Promatic.
5.1 License, Use and Support Fee: In consideration for the foregoing License, Software, Internet/Web Usage for all employees and staff is up to two hours per month of support, per office paid for, the Client shall pay a monthly License, Use and Support Fee thereafter (the “Usage Fee”), of the amount specified in the signed license agreement or order form, per month, billed in advance, per office. Payment is non-refundable but this agreement can be cancelled with 30 days notice.
5.2 Additional Charges: If the Client’s payment method is rejected or declined for any reason whatsoever, Promatic can charge an additional $45.00 service fee in addition to any rejected or declined Usage Fee, which shall be due and payable immediately upon demand. Included in the License and Usage fee is 10GB of Internet memory in a secure server environment as detailed in the schedule below. Additional Internet/Web memory in a secure server environment can be purchased at no more than $20 per GB/year. Active Data will be stored for 6 months and then it will be stored in long term storage for an additional 1 year. Technical Support of the Software will be charged at $150 per hour, charged to the credit card provided, if it exceeds the included two (2) hours per month.
5.3 Credit Card Payment: The Client shall provide accurate credit card information and the Client authorizes Promatic to charge such credit card for all fees, in advance, on the first day of the month on the billing frequency stated in this Agreement and Promatic to charge such credit card for all additional server usage and $75.00 declined service fee for each month the card provided is declined. The Client is responsible for providing complete and accurate billing and contact information and notifying Promatic of any changes to such information. If any fees are not received from the Client by the due date on the statement, such fees shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law if it is below such rate, from the date such payment was due until the date paid. In the event Promatic brings an action to collect any unpaid fees, the Client further agrees to pay any reasonable attorney fees on a solicitor and own client basis incurred by Promatic in order to collect such amounts due.
6.1 The Client shall have no other right to copy or print, in whole or in part, the Software or any related materials. All copies made by the Client are the exclusive property of Promatic.
7.1 The Client will be deemed to have accepted the Software including the terms and conditions of this Agreement upon logging into the Software.
8.1 The Client agrees to: A) Provide Promatic personnel with full, free and safe access to equipment or Software for purposes of maintenance and implementation, including access to qualified personnel and the use of data communication facilities, if required; B) Maintain and operate the Software in an environment and according to procedures which conform to Promatic’s specifications; C) Not allow maintenance of the Software by anyone other than Promatic without prior written authorization from Promatic; D) Provide remote communications facilities and access to Promatic for the purposes of investigating and resolving Software functional or user problems, or installing version upgrades or enhancements as provided for under this Agreement.
8.2 The Software shall be used only for Client's own business. Client shall not: (a) allow unauthorized access to or use of the Software, (b) sell, resell, republish, rent, lease, license or sublicense Software, (c) permit any parent, subsidiaries, affiliated entities or third parties to use the Software, (d) process or permit to be processed the data of any third party, (e) use the Software to directly or indirectly to violate any applicable law or regulation regarding the Client’s trade, profession or its customer’s consumer protection rights, or personal privacy rights, including but not limited to any local or federal “Do Not Call Lists”, (f) attempt to gain unauthorized access to the Software or service, (g) decompile, reverse-engineer, create derivative works or otherwise unlawfully recreate the Software, application or any service.
9 LIABILITY LIMITATION. PROMATIC SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROMATIC’S SOLE LIABILITY, INCLUDING LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, AND STRICT LIABILITY IN TORT OR WARRANTY, SHALL NOT EXCEED ANY AMOUNT PAYABLE BY THE CLIENT UNDER THIS AGREEMENT.
9.1 Verification. The software makes available rules, requirements and direction entered into the system. It is the client’s and their users sole responsibility to verify this information and to govern themselves as professionals and follow the conduct required to do a good and professional job.
11.2 Promatic shall have the right to assign the Software of this Agreement to anyone or as part of the sale of any portions of its business, or pursuant to any merger, consolidation or reorganization upon written notice to the Client.
13.1 This agreement can be terminated at any time by either party with 10 days written notice by either party.
13.2 Promatic is not responsible or liable in any manner for any information upload or in connection with the Software, whether uploaded or caused by any Client or user. Promatic does not control and are not responsible for what the Client uploads and are not responsible for any offensive, inappropriate, obscene, unlawful, or otherwise objectionable content a Software client enters in the Software and doing so is grounds for immediate termination and suspension of said client. Promatic is not responsible for the online or offline conduct of any Client or user of the Software. The Client acknowledges that they are responsible to monitor and manage all information uploaded by any of their users.
13.3 In addition to clause 13.1 above, Promatic shall have the right to terminate this Agreement and the License granted herein: A) Upon 10 days' written notice in the event that Client, its officers, agents, or employees violate any provision of this Agreement; and B) In the event of termination by reason of the Client's failure to comply with any part of this Agreement, or upon any act which shall give rise to Promatic’s right to terminate this Agreement and revoke access to the Software without demand or notice. Within seven days after termination of this Agreement, the Client will download all their data and destroy all documentation of the Software and certify in writing that they have been destroyed, this requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not modified or merged into other materials. Termination under this paragraph shall not relieve the Client of its obligations regarding confidentiality of the Software. C) In the event the Client:
13.4 Effect of termination. Termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Client's obligation to pay all fees that accrued prior to such termination.
14.1 Indemnification. The Client hereby agrees to indemnify and save harmless Promatic in the event the Client suffers any loss, damage or expense whatsoever relating to the Client’s use of the Software or hardware or any negligence on the part of the Client in its use of the Software whatsoever and in the event any third party makes any claim, suit, demand or action against Promatic, the Client hereby agrees to indemnify and save harmless Promatic from said claim, suit, demand or action and further agrees to indemnify Promatic for all legal fees payable by Promatic in respect of defending any such claim, suit, demand or action on a solicitor and own client basis. In no case shall Promatic be liable for any more than the cost paid under this Agreement.
14.2 Complete Agreement. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms. The parties further agree that this Agreement, including Attachments A, B and C, is the complete and exclusive statement of the Agreement between the parties. This Agreement supersedes all prior or contemporaneous agreements and writings between Promatic and the Client with respect to the subject matter hereof. All such other agreements and writings will have no further force or effect. Neither party shall be bound by any condition, warranty, or representation, other than those expressly stated in this Agreement or as subsequently set forth in writing signed by the parties to be bound.
14.3 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the Post, mail, postage prepaid, registered or certified mail, return receipt requested, addressed as per above for Promatic and the Client. If notice is given by prepaid post in accordance with this section, it shall be deemed to have been received on the third Business Day following the day of mailing. Notice may also be delivered by electronic to the addressee at the fax number or email noted above provided that it shall be deemed to have been received on the next Business Day following the date of transmission.
14.4 Governing Law and Jurisdiction. This Agreement and performance hereunder shall be governed by the laws of the state of Texas. The sole jurisdiction for any legal proceedings under this Agreement shall be Harris County, Houston, Texas. All requirements for the handling of personal, private and or confidential information shall be governed by the laws of the state of Texas.
14.6 Statute of Limitations. No action, regardless of form, arising out of this Agreement may be brought by Client more than two years after the cause of action has arisen.
14.7 Waiver. The waiver or failure of Promatic to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
14.8 Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statue or rule of law, it is to that extent to be deemed omitted, and the remaining provisions shall not be affected in any way.
14.9 Headings. The headings of the various paragraphs herein are for convenience only and shall not control or affect the meaning or construction of any provisions of this Agreement.
14.10 Force Majeur. Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including, without limitation, acts of God or nature; labor disputes; terrorist acts, sovereign acts of any federal, state or foreign government; or shortage of materials.
14.11 Counterparts. This Agreement may be executed in counterparts, which, taken together, shall be regarded as the one and the same. A facsimile of a signed copy of this Agreement received from Licensee may be relied upon as an original.
Description of SOFTWARE
WorkTracker is the rebranded WaterTracker
The rebranded WaterTracker Internet program is now called WorkTracker and is designed to enable User’s to expedite the recording and documentation of water, and or various other job types such as but not limited to, abatement, content or repair information, obtain required signed documents from property owners and verify site attendance upload including an Apple / Android APP to enable this activity. It includes, but is not limited to, the following modules:
· Job Manager
· Contact Manager
· Moisture Manager
· Dispatching information to Work Tracker APP
· Photo Report
· Moisture Reading Report
· Job Assignment/Details screens
· WorkTracker Screens & Reports
· Job Forms
· Job Doc Manager
· Alert Manager
· Compliance Management
Internet Programs
The Promatic software is programmed such that the mobile application is used to enter information including but not limited to the dimensions, readings and photographs and these are transfer to the internet for reporting and storage including unique “global” reporting abilities, and off-site access to files.
WorkTracker Usage
Logging into the internet application or receiving alerts or claims/jobs/events or updating any claims/jobs/events from the mobile application will be considered use.
Software Maintenance Agreement
During the term of the License Agreement, Promatic will provide:
Software Exclusions
Software maintenance excludes:
Version: 2.0
Published: August 18, 2021