INFINITIVE SOLUTIONS, LLC (doing business as GDS Estimating) LICENSE AGREEMENT
DO NOT USE this product (WinBidPro v16) until Licensee carefully reads the following terms and conditions. Using this product indicates that the single, or company/entity end-user, of this software (the "Licensee") accepts these terms and conditions. If Licensee objects to any term or condition, then the Licensee can stop using the product and let their trial subscription expire without further action. If the Licensee recently purchased an active subscription, they should request a refund immediately.
The following terms and conditions apply to all users, whether trial or registered. Trial users will hereby be referred to as the Licensee for this purpose. These same terms and conditions apply when a trial user either extends the trial period or purchases the product. WinBidPro v16 is a hybrid application that is installed in a Microsoft Windows operating system and accesses a cloud server for data retrieval and storage. As such, the Licensee must acknowledge and agree to both the GDS Terms of Service, and this License Agreement before using this software.
1. Use of Manufacturer Catalogs
Infinitive Solutions, LLC, the parent of GDS Estimating and all its properties and products, does not express or imply any warranty for the contents or accuracy of this catalog information. The accuracy and completeness of the data included in GDS software catalogs is not guaranteed in any way and must be thoroughly checked by the Licensee. GDS has no expressed or implied obligation to provide current catalog information for its manufacturer catalogs, but will make every effort to provide current information for said catalogs. The Licensee must be aware that manufacturer catalogs may or may not be checked and approved by the actual manufacturer of the material. There is no guarantee or warranty by the manufacturer of the material presented in a catalog as to its accuracy or completeness. All information produced by the GDS software and the selected manufacturer should be confirmed by the Licensee before deemed reliable by the Licensee and/or the manufacturer itself.
See the Terms of Service page for information about data created and saved in the WinBidPro application.
2. Entire Agreement
Licensee acknowledges that Licensee has read this agreement and understands this agreement (the "Agreement") is the final, complete and exclusive statement of the entire agreement between Infinitive Solutions, LLC ("Infinitive") and Licensee. This Agreement supersedes any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this agreement, whether oral or written. No terms or conditions, other than those contained in this Agreement, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon Infinitive unless made by a written agreement, executed by duly authorized representatives of both Infinitive and Licensee.
3. Licensed Software and Documentation License
3.1. Infinitive hereby grants Licensee a non-exclusive, non-transferrable and perpetual license to use the enclosed computer software (the "Licensed Software") and the associated documentation (the "Documentation"), subject to the limitations set forth in this Agreement (the "License"). All right, title and interest to the Licensed Software and the Documentation are, and shall remain, in Infinitive or Infinitive's licensors, as the case may be. Licensee has no right of access to the source code of the Licensed Software. Licensee is not entitled to updates or upgrades of the Licensed Software or Documentation.
3.2. Licensee may not alter, assign, create derivative works, decompile, disassemble, distribute, lease, modify, reverse engineer, sublicense, transfer or translate in any way the Licensed Software or Documentation; provided, however, that Licensee may permanently and simultaneously transfer all of the Licensed Software, Documentation and the License if: a) Licensee delivers to the transferee the Licensed Software and Documentation; b) notify Infinitive in writing of such transfer; and c) destroy any archival/backup copy. Licensee agrees that the transferee must expressly accept all terms and conditions of this Agreement.
3.3. Licensee MAY NOT COPY the Licensed Software or Documentation; provided, however, that Licensee may make one (1) copy of the Licensed Software for archival/backup purposes.
3.4. If either the Licensed Software or Documentation is used in any way not expressly and specifically permitted by this License, then the License shall immediately terminate. Upon the termination of the License, Licensee shall thereafter make no further use of the Licensed Software or Documentation, and Licensee shall return to Infinitive all licensed materials at the expense of the Licensee.
3.5. The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.
3.6. By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order, or by using or accessing the Software, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access the Software.
4. Accounts: Authorized Users, Return Policy
4.1. Account Registration.
You must register for an account with us in order to place Orders or access or receive Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made or Apps enabled (which may incur fees).
4.2. Authorized Users. Only Authorized Users may access and use the Software. You are responsible for compliance with this Agreement and the Terms of Service by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Software must be solely for the benefit of you or your Affiliates.
4.3. Return Policy. As part of our commitment to customer satisfaction, you may terminate your subscription to the applicable Software under this Agreement, for no reason or any reason, by logging into the GDS Estimating website, accessing the Payments & Billing page, then the Manage Subscription page. In this same page you are also able to disable the Auto Renew feature, so that your subscription will not renew automatically each year. In the event you cancel your subscription, Infinitive will disable the license that allowed the Software to operate and, at your request, Infinitive may refund you the remaining pro-rated balance paid under your subscription. You understand that Infinitive may change this practice in the future in accordance with Section 11 (Changes to this Agreement).
5. Privacy Terms
6. Ownership and Feedback
The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Infinitive and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Infinitive (including the Software). From time to time, you may choose to submit Feedback to us. This feature is available inside the WinBidPro v16 software in the Help menu. Infinitive may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Infinitive’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Infinitive information and any performance information relating to the Software will be deemed Confidential Information of Infinitive without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Termination for Convenience. You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to Infinitive, but, unless you are exercising your right to terminate early pursuant to Section 7.3 (Return Policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
8.4. Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of Infinitive in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. If this Agreement is terminated by you in accordance with Section 8.2 (Termination for Cause), Infinitive may offer you a prorated refund of any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by Infinitive in accordance with Section 8.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to Infinitive for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
9. Warranties and Disclaimer
9.1. General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
9.2. Virus Warranty. Infinitive further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and Infinitive’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.
9.3. EXCEPT AS EXPRESSLY SET FORTH IN THE ABOVE SECTION 9.1 (GENERAL WARRANTIES) AND 9.2 (VIRUS WARRANTY), NO WARRANTY ON LICENSED SOFTWARE, SUPPORT OR DOCUMENTATION. Infinitive licenses the Licensed Software and Documentation solely on an "AS IS" basis without warranties of any kind, such as warranties of merchantability or fitness for any particular purpose. The entire risk of quality and performance is with Licensee. The Software and Documentation are not represented to be error-free. If either the Licensed Software, Documentation or both prove to be defective, Licensee assumes the entire cost of all servicing, correction or repair.
9.4. The foregoing warranty gives Licensee specific legal rights, and Licensee may also have other rights which vary from state to state. Some states do not allow the limitation or exclusion of implied warranties, so the above limitations may not apply to Licensee.
10. U.S. Government Restricted Rights Legend
The Licensed Software and Documentation have been developed exclusively at private expense and is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Licensed Software clause at DFARS 252.227-7013. Infinitive is the Contractor, and is located at 2033 San Elijo Ave. #221, Cardiff by the Sea, CA 92007, (858)538-4375.
11. Changes to this Agreement
11.1. Modifications Generally. We may modify the terms and conditions of this Agreement (including Infinitive Policies) from time to time, with notice given to you by email, through the Software or through our website. Together with notice, we will specify the effective date of the modifications.
This Agreement shall be considered severable, and if for any reason any term or condition is determined to be invalid, illegal or unenforceable under current or future law, such invalidity shall not impair the operation of, or otherwise effect, the valid terms and conditions of this Agreement, so long as the intent of this Agreement is maintained.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of California, with the exception of its conflict of law provisions. The parties consent to the personal jurisdiction of the Commonwealth of California and agree that any legal proceedings arising out of this Agreement shall be conducted solely in such Commonwealth.
No action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after a claim has accrued.
Copyright (C) 1985, 2022 Infinitive Solutions, LLC. All rights reserved