THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Terms of Service
Subject to the terms and conditions of this Agreement, Provider grants to Client during the Term, a non-transferable, non-exclusive right, without right to sublicense, to access and use the ProDeal360 Platform (the “Platform”) made available to the Client by Provider, as updated or revised by Provider from time to time. All rights not expressly granted herein are retained by Provider. Provider does not guarantee, represent or warrant that access to the Platform will be uninterrupted or error-free, and Provider does not guarantee that Client will be able to access or use all or any of the system features at all times. Provider may suspend the Platform, in whole or in part, at any time. You acknowledge and agree that Provider, in its sole discretion, shall be entitled to determine the correct owner of a particular account in the event of any dispute between individuals or entities as to the identity of the owner or beneficiary of any account. You agree that any decision by Provider in this regard shall be final.
2. FEES, SUBSCRIPTIONS, CANCELLATIONS AND PAYMENTS.
Clients may be required to pay ongoing, self-renewing subscriptions to access the Platform (collectively, the “Subscriptions” or each, a “Subscription”). Clients that sign-up for a Subscription will be granted access to the Platform (i) for the number of end-users, (ii) for the duration, and (iii) shall be charged in the amounts and at the times, as identified on the Platform or otherwise presented to the Client when the Client signs up or upgrades. Clients that exceed the number of end-users allowed under their Subscription will have their Subscription immediately modified to allow the excess number of end-users (the “Pay As You Grow Adjustment”). In the case of any Pay As You Grow Adjustment, (i) Client shall be charged for the Pay As You Grow Adjustment in an amount equal to the monthly Subscription fees due to allow the excess number of end-users, prorated for the time that such excess end-users had access to the Platform, payable at Provider’s selection either immediately, at the next scheduled Subscription charge date, or at termination, and (ii) starting on the date of the next monthly Subscription charge to Client and continuing thereafter, Client shall be charged in the amounts and at the times, associated with the modified Subscription, as identified on the Platform. Any one-time fees shall be paid prior to rendering services by Provider, or on terms supplied by Provider at that time, at Provider’s election. Any sales or use taxes shall be Client’s sole responsibility. Provider may elect to charge and collect taxes, which may be included on an invoice or other payment request; provided, however, that any such taxes are ultimately Client’s responsibility regardless of whether it is included in an invoice. Provider reserves the right to change the applicable Subscription fees or charges and to institute new subscription fees and charges at the end of the current Subscription term which may be sent by email or by posting the revised or new fees to the Platform. Unless cancelled before renewal, except where prohibited by law, Subscriptions automatically renew for an additional term of the same length upon expiration. Fees or charges during any such renewal term shall be the same as that during the prior term unless Provider gives Client notice of an increase as described herein, in which case the increase shall be effective upon renewal and thereafter. Subscriptions may be cancelled upon thirty (30) days’ advance notice to Provider. Cancellation will not entitle any Client to a refund for any past payments or future payments due during the remainder of the cancelled term. Clients that cancel before the end of their Subscription will be charged the entire remaining Subscription fees at that time. Subscriptions may be cancelled by emailing Provider at: firstname.lastname@example.org. Provider may use a third-party payment processor (the “Payment Processor”) to bill Clients. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Provider shall not be responsible for any error by the Payment Processor. Client agrees to provide to Provider, and keep updated, accurate and complete information about the Client and the Client’s chosen payment provider (the “Payment Method”), including without limitation, credit card number, credit card verification or other security code, the expiration date of the credit card, and the Client’s address. Verification of information may be required prior to the acknowledgment or completion of any transaction. Client authorizes Provider to share such information as well as transaction information with the Payment Processor. If Client is purchasing a Subscription, Client agrees to pay Provider, through the Payment Processor, all fees and charges at the prices for any use of the Platform, and any fees and charges associated with any Pay As You Go Adjustment. Client agrees to make payment using the Payment Method, and authorizes Provider, through the Payment Processor, to charge the Payment Method. Provider reserves the right to correct any errors or mistakes that it makes even if payment has already been requested or received. Client represents and warrants that it has the legal right to use any credit card(s) or other payment means used to initiate any transaction. Provider currently uses two Payment Processor: (i) Recurly; and (ii) Stripe. As such, the processing of payments are subject to (i) Recurly’s Terms of Service, (ii) the Stripe Terms of Platform, (iii) Recurly and Stripe’s privacy policies, if any, and (iv) any other applicable agreements, terms and conditions, or policies of Recurly and Stripe, if any. For any subscription products, Client agrees that its license to the Platform is not a service, repair or maintenance to real or personal property. All transactions are final, and no refunds are available from Provider.
From time to time Provider may offer a trial period that includes access to the Platform during the trial period. Trials will have the duration and price communicated at the time of check-out or as otherwise communicated in writing by a Provider representative. Unless otherwise communicated in writing, a trial begins at the moment of check-out and ends at 11:59pm ET on the last day of the trial (for a one-week trial, this would be the same weekday of following week). Each trial automatically will convert to a Subscription as identified on the Platform, unless canceled by 12pm ET on the day before the last day of trial. If Client cancels or otherwise does not convert to a Subscription after the end of the trial period, Client and all their users or invitees may lose access to the Platform, unless such users or invitees have authorized access through another account. Trials, discount offers, and promotions (collectively “Trials”) may be redeemed as described in the specifics of the promotion and may be subject to additional or different terms. Unless Provider expressly communicates otherwise, Trials are not transferable, may not be combined with other offers or redeemed for cash and are void where prohibited. Client understands and agrees that unless Provider expressly communicates otherwise, Trials are available only to new Clients that have never used the Platform and there is only one Trial permitted per Payment Method and it is a violation of these Terms to sign up for a Trial if a Client has signed up for a trial in the past. Provider reserves the right, in its absolute discretion, to determine a Client’s eligibility for a Trial. If in Provider’s discretion Provider believes that a Client is not eligible for a Trial, Provider reserves the right to prevent such Client from signing up for a Trial or to terminate such Client’s Trial. If Provider terminate a Client’s Trial because of a violation of these Terms, such Client will not be eligible for a refund.
Except as otherwise specifically permitted in this Agreement, neither the Client nor any of its user may: (i) modify or create any derivative works of the Platform, including translation or localization; (ii) access or copy the Platform except as provided in this Agreement or elsewhere in writing by Provider; (iii) sublicense or permit use of the Platform by any persons not associated with the Client and authorized as a user; (iv) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the Platform; (v) redistribute, encumber, publicly display, sell, rent, lease, sublicense, use the Platform in a timesharing or service bureau arrangement, or otherwise transfer rights to the Platform; or (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform. Notwithstanding the foregoing, Client shall be permitted to use reports, documents or other materials generated by Client through the Platform outside of the Platform, for Provider’s general business purposes. Neither Client nor its users are permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Platform any information or materials provided or submitted by Client or any of its users in the course of utilizing the Platform (“Client Content”) that: (i) is unlawful or encourages another to engage in anything unlawful; (ii) contains a virus or any other similar programs or software which may damage the operation of Provider’s or another’s system; (iii) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (iv) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Client understands and agrees that Provider reserves the right to edit, modify or remove content being hosted by Provider, for reasons including but not limited to violations of the above standards. Client and its users may not use the Platform in any way that (i) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or (ii) would be in violation of applicable law or cause damage or harm to Provider or any third-parties. You may not use the Services or permit your users to use the Services in violation of the AWS Acceptable Use Policy at https://aws.amazon.com/aup/, as may be updated from time to time. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Platform. Without limiting the foregoing, Client warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Client shall not use, export or re-export the Platform in violation of any U.S. export embargo, prohibition or restriction.
Provider retains all right, title and interest in and to the Platform and any and all updates, upgrades or new modules now or hereafter included or made available to Client through the Platform. Title to and ownership of any modifications, suggestions, feedback or customizations of the Platform shall be held exclusively by Provider, and to the extent necessary, is hereby assigned by Client to Provider. Client agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of Provider set forth in this Section. All Client Content is and shall remain the property of Client or the applicable third party. Client grants to Provider a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Client Content in connection with the Platform.
6. BETA SERVICES.
Provider may invite you to test “Beta” services at no charge. Beta services will be designated as test, beta, pilot, limited release, developer preview, non-production, evaluation or with a similar description. Beta services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Provider may terminate a Beta service at any time, for any or no reason. Provider may discontinue Beta Services at any time in its sole discretion and may never make the Beta Services generally available. If a generally available version is released, there may not be an automatic update path from the Beta version to the generally available version. If not earlier terminated, any Beta services trial period will expire on the date that the Beta service is released on a generally available basis. Beta Services are provided AS IS.
7. INTEGRATION FEATURES.
Provider may provide integration features that enable you to interact with your third party service providers. Provider does not endorse or recommend any service for which it offers an integration feature. You acknowledge that Provider’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts Provider integration feature. Provider may discontinue an integration feature without liability to you. Your obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features. Your use of the third party service is subject to the legal agreement and privacy policies between you and the third party. You should review the third party’s legal terms and privacy policies before using their services.
It is anticipated that the Parties may exchange certain proprietary information necessary to carry out obligations set forth hereunder, which may be collected during the use of the Platform, and which may be otherwise discussed between the Parties. In order for each Party to access, use and track the other Party’s proprietary information, the Parties agree as follows: Definition. “Confidential Information” as used in this Agreement means any and all information disclosed by a Party (each a “Discloser”) to the other Party (each a “Recipient”), provided: (i) if such information is disclosed in tangible form, it is conspicuously marked to identify its confidential or proprietary nature; or (ii) if such information is disclosed orally or by other intangible means, it is identified as confidential at the time of disclosure or is reasonably understood to be confidential given its nature or the circumstances surrounding its disclosure. Notwithstanding the foregoing, as between Provider and Client, the Platform is deemed to be Provider’s Confidential Information. Confidential Information shall not include information that: (i) was generally known or available at the time it was disclosed or has subsequently become generally known or available through no fault of Recipient; (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) is independently developed by Recipient without use of Discloser’s Confidential Information as documented by competent records; or (iv) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Use Limitations; Nondisclosure Obligation; Duty of Care. Each Party agrees as a Recipient: (i) not to use Confidential Information of the other Party for any purpose except in furtherance of its rights or obligations hereunder; (ii) that it shall disclose the other Party’s Confidential Information only to its employees, advisors, contractors or consultants who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information of the other Party, to be bound by terms and conditions at least as restrictive as those of this Section, provided that any act or omission by such a third party that would be a violation of this Agreement if committed by a Party hereto shall be deemed a breach by the Party that provided the information to such third party; and (iii) to treat all Confidential Information of the other Party with the same degree of care as it accords its own confidential information of a similar nature, but in no case less than with a reasonable degree of care. A breach of these obligations may result in irreparable and continuing damage to the Discloser for which there may be no adequate remedy at law, and, in the event thereof, Discloser shall be entitled to seek injunctive or other equitable relief as may be appropriate. Required Disclosures. Recipient may disclose Confidential Information of the other Party as and to the extent required by a valid order of a court or other governmental body, as otherwise required by law or reasonably necessary to comply with court or arbitration process or governmental request, or as necessary to establish the rights of either Party under this Agreement. For disclosures required by law, a Party shall first, where permitted by law, notify the other Party of the disclosure and grant such other Party a reasonable opportunity to contest or otherwise limit such disclosure. Data Collection. Client agrees that Provider may, but is not required to, monitor Client’s and its users’ use of the Platform and collect and use data and related information which may be gathered periodically to ensure compliance with this Agreement, to facilitate the provision of updates, product support and other services (if any), and for Provider’s general internal business purposes. Subject to the foregoing use exceptions, other than in aggregate, non-identifiable form, and in a way that does not identify Client as the source, all such data shall be considered Client’s Confidential Information. Information included in an aggregate, non-identifiable data set shall not be considered Client’s Confidential Information provided that such anonymized information does not identify Client as the source.
9. YOUR SECURITY OBLIGATIONS.
You must use reasonable security precautions in connection with your use of the Services, such as requiring your personnel and users to establish reasonably secure passwords and using commercially reasonable efforts to protect your systems and data from malware. You may not interfere, or attempt to interfere, with any encryption features of the Services. You agree that you are responsible under the Agreement for any action taken using your account credentials, even if the action was not authorized by you.
10. AUTHORIZED USERS..
You authorize Provider to act on the instructions of a user who authenticates using the account credentials you have established. You are solely responsible for maintaining the user permissions and authentication credentials for your account. Accounts may not be shared among multiple individual users. You may not authorize anyone to use the administrative features of your Services account other than your employees and individual contractors under your direct supervision.
Client will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising from any third party claim, suit, action, or proceeding (i) arising out of or in connection with a claim, suit, action, or proceeding by a third party (ii) alleging that Client Content or other data, information or instructions supplied by Client infringes or caused Provider to infringe the intellectual property rights or other rights of a third party or has caused harm to a third party, (iii) to the extent arising out of claims relating to Client or its users’ use of the Platform in violation of the law, or (iv) to the extent arising out of or relating to an actual or alleged breach of this Agreement by Client.
12. DISCLAIMER; LIMITATION OF LIABILITY..
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PLATFORM AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE RELATING TO LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS AND/OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY RELATED TO INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED $1,000 IN THE AGGREGATE.
13. TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and remain in force until terminated by Provider at any time (the “Term”). In the event this Agreement is terminated for any reason, all rights to access the Platform shall immediately cease. Sections 2-12 will survive any termination or expiration of this Agreement. We reserve the right to deny all or some portion of the Service or Platform to any user, in our sole discretion, at any time. If we suspend or terminate your access to the Service or Platform without cause, we will issue you a pro-rata refund for pre-paid access to any paid Services for the period of suspension or for the pre-paid period that post-dates termination. You will not be entitled to a refund of any kind for any other reason. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law. All grants of any rights from you to us related to Content or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
14. GOVERNING LAW AND JURISDICTION; ARBITRATION.
Any claim or dispute arising out of or relating in any way to the Platform will be resolved solely and exclusively by binding arbitration, rather than in court, except that a Client may assert claims in small claims court if such claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding, without application of its conflicts of laws principles. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, a Client must send a letter requesting arbitration and describing its claim to the following address: Legal Department, ProDeal360 Inc., 300 Park Avenue, 12th Floor, New York, NY 10022. Arbitration under this Agreement shall be conducted by the American Arbitration Association (AAA) under its rules then in effect, shall be conducted in English, and shall be located in New York, New York. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Client and Provider agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both Client and Provider agree that each have waived any right to a jury trial. Notwithstanding the foregoing, Client agrees that Provider may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties. To the extent arbitrations does not apply, Client agrees that any dispute arising out of or relating in any way to the Platform, or to Provider, may only be brought in a state or federal court located in New York, NY. CLIENT HEREBY WAIVES ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREES TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
15. COPYRIGHT POLICY.
If you believe in good faith that any material posted on the Platform infringes the copyright in your work, please contact Provider’s copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
- Information reasonably sufficient to permit Provider to contact you;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact Provider’s designated DMCA Copyright Agent: Copyright Agent ProDeal360 Inc. 300 Park Avenue, 12th Floor New York, NY 10022 e-mail: email@example.com
Provider may identify you in its marketing and sales materials, and may include your trademarks and service marks, such as trade names, logos, and similar indicia (your “Marks”) in an appropriate area of its website and marketing materials, provided that it does not state or imply that you endorse the Platform. We will use and display your Marks in accordance with your trademark usage guidelines communicated to us.
This Agreement constitutes the Parties’ entire understanding and agreement with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations and understandings between the Parties regarding the subject matter hereof. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the Parties hereto. A provision of this Agreement may be waived only by a writing signed by the Party to be bound. Client may not assign this Agreement, and any assignments shall be null and void. Provider may assign or transfer this Agreement at any time. No changes to this Agreement enforceable against Provider shall be made other than in a writing signed by Provider.