This Client Portal Agreement & Use Policy (the “Agreement”) is made by and between Pro-Pipe, Inc., a California corporation (collectively, the “Company”) and each individual, business or entity (the “Client”) that uses the Client Portal (as defined below) provided by the Company. Each time the Client Portal is used, an implicit affirmation is given for the acceptance of the following terms and conditions.
Purpose. The Company provides a voluntary client portal to certain of its customers and its affiliate’s customers using Acumatica Cloud ERP third party software and hosting to permit electronic transfer of information, including inspection videos and reports (“Deliverables”) between the Client and the Company, as well as on-going Client access to certain documents and files, which may include confidential documents, invoices, statements, and emails, (collectively, “Client Documents”) created or maintained by the Company (the “Client Portal”). The Company has sole discretion to decide which types of documents can be uploaded or viewed on the Client Portal. The Company is not responsible for the security of any material that Client downloads from the Client Portal.
Description of Service. The Company created the Client Portal to provide authorized clients easy access to your account’s Deliverables and Client Documents. The Client Portal allows the Company to provide Client with access to certain inspection videos and reports and provides the ability for two way exchanges of documents between the Client and the Company and serves exclusively as an environment to transmit documents and files back and forth. The Client Portal is not designed as a means for regular communication. However, announcements and notifications may be posted on the Client Portal as documents are delivered or made available, or as necessary to communicate with all Clients that have Client Portals.
Service Availability. The Company makes no representation or warranty that the service will be available, especially since a third party provides the software and hosting of the Client Portal, as well as certain services offered as part of the Client Portal. Client agrees and acknowledges that the Client Portal may, at times, be unavailable due to regularly scheduled maintenance, service upgrades, or other mechanical or electronic failures. The Company shall not be responsible for any downtime, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to the Client Portal. The Company recommends that the Client runs the Client Portal using the latest version of Google Chrome. The Company is not responsible for any problems, delays or technical malfunctions of any telephone or fiber network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email to be received by the Company on account of technical problems or traffic congestion on the internet or at any website, or any combination thereof, including any damage to your computer or peripherals related to use or downloading any materials from the Client Portal.
User Password and Security. Using the Client Portal and its current and/or future related services (including Single Sign-on “SSO”) requires the use of a username and password, and the Client is responsible for designating users and assigning usernames to its designated employees (“Designated Users”). The confidentiality of the username, password and account itself are the responsibility of the Client and each Designated User. Any activities that occur under Designated Users’ accounts are the responsibility of the Client. You agree to notify the Company immediately of any unauthorized use of accounts or any other breach of security. The use of another person’s username and/or password is expressly prohibited.
The Client acknowledges that the use of a username and password is an adequate form of security and that any additional security measures such as dual authentication, while enhancing security, are not necessary for this application. The Client is solely responsible for (1) authorizing, monitoring, controlling access to and maintaining strict confidentiality of Client’s usernames and passwords, (2) not allowing another person to use the username or password or that of any Designated User, (3) any charges or damage that may be incurred as a result of the neglect of the Client or a Designated User to maintain the strict confidentiality of username(s) and password(s), and (4) promptly informing the Company in writing of any need to deactivate a username due to security concerns or otherwise. The Company is not liable for any harm related to the misuse or theft of usernames or passwords, disclosure of usernames or passwords, or the Client’s authorization to allow another person or entity to access and use the Company’s Client Portal by sharing a username or password.
The Client agrees that a risk exists that a breach of security may occur. Further, you agree that you shall not attempt to disable or circumvent any security features on the Client Portal or ask any third party to do so on your behalf.
THE COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE EFFICACY OF THE SECURITY OF THE CLIENT PORTAL AND SHALL NEVER BE LIABLE FOR ANY ACTUAL OR CONSEQUENTIAL DAMAGES, CLAIMED OR OTHERWISE, ARISING FROM ANY BREACH OR ALLEGED BREACH OF SECURITY OF THE CLIENT PORTAL.
Lawful Use. The Client’s access to and use of the Client Portal is subject to all applicable laws and regulations. You represent and warrant that you will not use the Client Portal in any manner or for any purposes that are unlawful or prohibited by this Agreement. You agree that you are responsible for complying with applicable privacy, data transfer, and data security laws, and you agree to abide by such laws in connection with your use of the Client Portal.
Confidentiality. The Client understands that you may receive certain Confidential Information (as defined below) from Company. “Confidential Information” includes the Client Portal, the Client Portal content including Deliverables, trade secrets, financial information, sales and marketing data and any other information transmitted via the Client Portal. The Client agrees that you will not disclose Confidential Information to any third party, and you agree not to use or reproduce such Confidential Information without the prior written consent of the Company except as otherwise permitted herein. The Client agrees that you will limit access to Confidential Information to those of your employees who have a need to know such Confidential Information. The Client agrees that upon written request you will return to the Company any and all written or tangible materials (including all copies) of Confidential Information in your possession. The Client acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a breach of this Agreement by you will cause continuing and irreparable injury to the Company and its clients for which monetary damages would not be an adequate remedy. In the event of a breach of this Agreement, in addition to any other legal remedies available, the Company and its clients have the right to seek injunctive or other equitable relief without any requirement for the posting of any security or bond.
Termination of User Account and Logon Ability. The Client agrees to notify the Company immediately when your account is to be terminated. The Company will make reasonable efforts to terminate access promptly following receipt. However, you cannot be assured that access has been terminated until you receive confirmation of the termination from the Company. In addition, weekends, holidays and other non-business days could cause a delay in the receipt of such request for termination.
Intellectual Property Ownership. The Client acknowledges that the Company, or the applicable third party, owns all right, title, and interest, including all intellectual property rights, in and to the Client Portal, and all related software and documentation provided or contained therein, and nothing in this Agreement shall be deemed to grant any ownership rights in any such intellectual property to the Client.
NO WARRANTY; LIMITATION OF LIABILITY.
THE CLIENT PORTAL, THE DELIVERABLES, AND ANY AND ALL SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE CLIENT PORTAL, THE DELIVERABLES, ANY SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET THE CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
IN NO EVENT WILL THE COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE COMPANY’S LIABILITY SHALL BE ELIMINATED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification. To the extent allowed by applicable law, Client agrees to defend, indemnify and hold harmless Company and any of its directors, officers, members, shareholders, and employees and their heirs and assigns from and against any and all direct or third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of or related to Client’s use of the Client Portal or the Deliverables, or any breach by Client of any term or condition of this Agreement. If any such action shall be brought against any indemnified party, they shall notify Client in writing and Client shall assume and control the defense and settlement of each such action, including the employment of counsel and payment of all expenses associated with such action. Any indemnified party shall have the right to employ separate counsel in any such action and participate in the defense, at their own cost unless otherwise agreed to by Client.
Changes to Terms and Conditions of Use. The Company reserves the right to modify the terms, conditions, and notices under which the Client Portal system is offered. The Client’s continued use of the Company’s Client Portal system and the Client Portal after the postings of any amended terms and conditions shall constitute your agreement to be bound by any such changes.
Entire Agreement. This agreement is the entire agreement between the Company and you regarding the use of Client Portal. Verbal or other communications are not valid until written in this document. This Agreement does not modify any existing or future contract for services between you and the Company and is not intended to be a contract for services.
Term and Termination. The term of this agreement extends past the life of the Client Portal and remains in full force and effect even if access is terminated to you or the Client Portal or if you cease to be a Client of the Company. The Company may at any time terminate in whole or in part the Company’s portal system or the Client Portals without notice or liability. The Company may also choose to use a different third party software and/or hosting provider at any time without notice or liability.
Enforceability. Should any portion of this agreement be deemed unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of all remaining provisions which will remain in full force and effect. The failure of the Company to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against the Company unless made in writing and signed by a representative of the Company, and no such waiver shall be construed as a waiver in any other or subsequent instance.
Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Terms and Conditions Effective Date: June 1, 2021