HOSTED SERVICE AGREEMENT
This agreement, between PROS Elite Group, Inc. located at 1936 Bruce B Downs Blvd #323, Wesley Chapel, FL 33544 and the individual or non-individual legal entity agreeing to the terms herein, creates certain rights and responsibilities. If you execute this agreement on behalf of a non-individual legal entity such as a company, you claim the authority to bind such legal entity to the terms of this Agreement. By executing this Agreement, whether by signature, by clicking a box online, or by any other legally recognized method, you represent and warrant that you have read and understood it, you have the authority to bind your company or organization to its terms and conditions and you agree to its terms.
1. OUR OBLIGATIONS
1. Hosted Service. We will make the Hosted Service available to you pursuant to this Agreement, at the rates set out in the applicable Quote.
2. Software Product and Upgrades. We will grant you licenses to use our Software Product pursuant to this Agreement, at the rates set out in the applicable Quote. We are constantly improving our Software Product and want you to benefit from such improvements. To that end, we will:
a. Provide you with corrections, changes, or workarounds (“Corrections”) for any significant defects, errors, or malfunctions in our Software Product or systems, on a timely basis, given the nature and scope of the defect. Install upgrades of our Software Product to the hosted servers as soon as practical after they become available.
b. Make release notes available and identify any significant impact upgrades may have on existing customizations.
c. Make available to you any revisions to the system Documentation developed to reflect upgrades and improvements to the Software Product.
3. Technical Support. We will provide our Standard Support to you at no additional charge. As part of the Standard Support, we will:
a. Provide you with support for the most recent release of our PIVOT software.
b. Our Standard Support covers support on standard functionality and Software Product defects. It does not include the provision of customization advice or consulting service.
4. Consulting Service. Included are consulting around utilizing PIVOT to maximize the PIVOT features and capabilities to drive financial and operational results within your organization. This consulting may occur but is not limited to one-on-one discussions, email correspondence or individual / group webinars to review effectively deploying PIVOT features and capabilities within their organization.
5. Protection of Your Data. We will take organizational, physical, and technical precautions to protect the security of Your Data. Those precautions will include measures for preventing access, use, modification or disclosure of Your Data by our employees except (a) to provide the Hosted Service and prevent or address service or technical problems.
2. RESTRICTIONS ON USE
2.1 Usage Control. You will be responsible for user compliance with this Agreement, as well as the accuracy, quality and legality of Your Knowledge Base, including the means by which you acquire Your Data. You agree to use commercially reasonable efforts to prevent unauthorized access to or use of our Hosted Service or Software Product, and to notify us promptly of any such unauthorized access or use. You agree to use our Hosted Service and Software Product only in accordance with the Quote, the Documentation and applicable laws and government regulations. It is your responsibility to comply with any terms of service for Other Applications which you use in conjunction with our Hosted Service or Software Product.
2.2 Usage Restrictions. You will not (a) make any Hosted Service or Software Product available to, or use any Hosted Service or Software Product for the benefit of, anyone other than you or users, or (b) sell, resell, license, sublicense, distribute, rent or lease the Hosted Service or Software Product. You will not use Your Knowledge Base or the Hosted Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party privacy rights, to store or transmit Malevolent Code, to interfere with or disrupt the integrity or performance of any Hosted Service or data not belonging to you, or attempt to gain unauthorized access to any Hosted Service or Software Product or its related systems or networks.
You will not use Your KnowledgeBase or the Hosted Service to circumvent a contractual usage limit, or to copy the Hosted Service or any part thereof, including a feature, function or user interface, except as permitted in writing by us. You will not frame or mirror any part of any our Hosted Service or Software Product, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Documentation. You may not access any Hosted Service or Software Product in order to build a competitive product or service, or reverse engineer any Hosted Service, KnowledgeBase or Software Product (to the extent such restriction is permitted by law).
2.3 External-Facing Hosted Service Behavior. You and your Users are solely responsible for complying with applicable law in any use of cookies or other tracking technologies, as well as the U.S. Digital Millennium Copyright Act. In addition, if You or your Users engage in any of the following activities, you may be deemed in material breach of this Agreement:
a. You may not use or allow the use of the Hosted Service to display, store, process or transmit: corrupted files, or any other items of a destructive or deceptive nature; material that infringes or misappropriates a third party’s intellectual property or proprietary rights; that violates a third-party’s privacy rights; that violates applicable law; that is excessively profane; that is hateful or violent; that advocates racial or ethnic intolerance; that is intended to advocate or advance computer hacking or cracking; illegal software; Malevolent Code; or any other material that violates or encourages conduct that would violate any criminal laws, any other applicable laws, or any other third-party rights.
b. You may not use or allow anyone else to use the Hosted Service to generate or facilitate unsolicited commercial email (spam). Spam activity includes, but is not limited to: sending email in violation of the CAN-SPAM Act or any other applicable anti-spam law; imitating or impersonating another person or email address, creating false accounts for the purpose of sending spam; mining or harvesting any web property (including any data not belonging to you) to find email addresses or other user account information; sending unauthorized mail via open, third-party servers; and sending email to users who have requested removal from a mailing list.
2.4 Removal of Software Product and Other Applications. If a third party contends that any content in our Hosted Service or Software Product violates applicable law or third-party rights, and if we are directed to remove such content in our Software Product or Hosted Service, we will remove such content as soon as practical in an upgrade to our Software Product. If we receive information that integration with any Other Application may violate the terms set out in this agreement or applicable law or third-party rights, and if we so notify you, you will promptly disable or modify such integration with the Other Application to resolve the potential violation. If you do not take the actions described in this subsection, we may disable your use of the applicable Software Product, Hosted Service or Other Application, or any part of any of these, until the potential violation is resolved.
3. OTHER APPLICATIONS
3.1 Acquisition of Other Applications and Hosted Service. Any rights or obligations associated with the acquisition by you of other applications, products or services, and any exchange of data between you and any third-party provider, are held between you and that provider. We do not warrant or support Other Applications.
3.2 Other Applications and Your KnowledgeBase. If you install or enable any Other Application for use with our Hosted Service or Software Product, you may be required to grant permission to the provider of that Other Application to access Your KnowledgeBase as required for the interoperation of that Other Application with the Hosted Service or Software Product. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by any Other Application.
3.3 Integration with Other Applications. The Hosted Service or Software Product may contain features designed to interoperate with Other Applications. To use such features, you may be required to obtain access to Other Applications from their providers and may be required to grant us access to your account(s) for the Other Applications. If the provider of the Other Application ceases to make the Other Application available for interoperation with the corresponding Hosted Service or Software Product on reasonable terms, or changes the API in a manner which breaks the integration with the Software Product or Hosted Service, you will not be entitled to any refund, credit, or other compensation.
4. FEES AND PAYMENT
4.1 Fees. You agree to pay all fees as set out in the applicable Quote Except as otherwise stated herein, you agree that fee payment obligations are non-cancelable for the term of the agreement, and fees paid are non-refundable. You understand that licenses and services purchased can be increased at any time but cannot be decreased until the end of the applicable term..
a. Invoicing and Payment. You will provide us with a valid credit card and payment authorization documents acceptable to us. You authorize us to charge such card for our Hosted Service and Software Product as set out in the Quote for the initial term and any authorized renewal term(s).
b. Taxes. You are responsible for paying any required taxes not invoiced by us for any purchase under this Agreement.
c. Prospective Functionality. You acknowledge that your purchase of our Hosted Service or Software Product is not contingent on the delivery of any prospective functionality or features, or dependent on any oral or written comments made by us regarding future functionality or features.
5. PROPRIETARY RIGHTS AND LICENSE GRANTS
5.1 Reservation of Rights. Our Software Product is protected by domestic and international intellectual property laws and treaties, including copyright laws. Our Software Product is licensed, not sold. Whether you have paid for your licenses or not, you may only access and use our Software Product in accordance with this Agreement. Subject to the limited rights expressly granted hereunder, we reserve all our rights, title and interest in and to the Hosted Service and Software Product, including all our related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
5.2 License by us to use our Software Product. We grant to you a specific number of limited, non exclusive, non-sublicensable, non-transferable licenses, to use our Software Product pursuant to the applicable Quote, subject to that Quote and this Agreement.
5.3 License by you to Host Your KnowledgeBase. You grant us a limited term license to host your KnowledgeBase, and any Other Applications and program code created by or for you, as necessary in conjunction with your use of our Hosted Service. Subject to the limited licenses granted herein, we acquire no right, title or interest in or to Your KnowledgeBase, Your Data, or any Other Application.
5.4 License by you to use your Feedback. Subject to the restrictions on Confidential Data, you grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Hosted Service any suggestion, enhancement request, recommendation, or other feedback provided by you or your Users relating to the operation of the Hosted Service.
5.5 Third Party Software. Our Software Product may contain software which originated with third parties, and without limiting the general applicability of the other provisions of this Agreement, you agree: (a) the right, title and interest to any third-party software incorporated in the Software Product remains with the third-party, which supplied the same; and (b) you will not distribute, disseminate, or otherwise provide any such third-party software available with the Software Product, in any manner, outside the scope set forth in this Agreement .
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” is all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, either expressly designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information may include, but is not limited to, business information or ideas, trade secrets, proprietary data, personnel data, suppliers, procedures, cost of merchandise, sales data, price lists, financial information, business plans, prospect names, business opportunities, confidential business reports, customer lists, data or contracts, computer software usage, technical reports on products and services, product data or specifications, technical know-how, formulae, diagrams, flow charts, drawings, source code, object code, program listings, test results, processes, inventions, research projects or product development.
6.2 Standard of Protection. Receiving Party will hold in confidence and not disclose Confidential Information to anyone, except as necessary to carry out the terms of this Agreement, or as authorized by the Disclosing Party in writing, and agrees to limit access to Confidential Information of the Disclosing Party to employees and contractors of the Receiving Party who have signed confidentiality agreements containing protections no less stringent than those herein.
7. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has entered into this Agreement in good faith and has the legal power to do so.
7.2 Limited Warranties. We warrant that we will not materially decrease the overall security of the Hosted Service during the applicable term; that the Hosted Service will perform materially in accordance with the applicable Documentation.
7.3 Mutual Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OUR SOFTWARE PRODUCT, ANY THIRD PARTY SOFTWARE, OR HOSTED SERVICE ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER OR NOT EXPRESS, IMPLIED, STATUTORY NOR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY SOFTWARE OR HOSTING PROVIDERS. WE MAKE NO REPRESENTATION AND WARRANTY WHATSOEVER WITH REPECT TO THIRD PARTY SOFTWARE INCORPORATED INTO THE SOFTWARE PRODUCT.
8. INDEMNIFICATION
8.1 Our Indemnification of You. Subject to the limitations set forth above in Paragraph 7. If we receive information about an infringement or misappropriation claim related to our Software Product or Hosted Service, we may choose, in our discretion and at no cost to you, to (a) modify our Software Product or Hosted Service so that it no longer infringes or misappropriates, without breaching our warranties under Paragraph 7, (b) obtain a license to allow for your continued use of our Software Product or Hosted Service in accordance with this Agreement, or (c) terminate your use of our Software Product or Hosted Service upon 30 (thirty) days’ written notice. The above defense and indemnification obligations do not apply to the extent a claim against you arises from alleged infringement or misappropriation in Your Knowledge Base, any Other Application or your breach of this Agreement.
8.2 Your Indemnification of Us. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that Your KnowledgeBase, or your use of our Hosted Service or Software Product in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of such a claim, or for any amounts paid by us under a settlement approved by You in writing, of such a claim against us, provided we (a) promptly give you written notice of such a claim against us, (b) give you sole control of the defense and settlement of such a claim against us, except that you may not settle any such claim against us unless it unconditionally releases us of all liability, and (c) give you all reasonable assistance in the defense of such a claim against us, at your expense.
9. MUTUAL LIMITATION OF LIABILITY
9.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE , IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT, INCLUDING ANY RENEWAL, PREDECESSOR OR SUCCESSOR AGREEMENTS, FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR HOSTED SERVICE).
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. RENEWALS AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date you first accept it and continues for one year, or as otherwise set forth in the Quote, unless terminated.
10.2 Renewal.This agreement will renew automatically unless otherwise terminated in writing 45 days prior to the auto-renewal. License renewals per license and service prices will be the same as that of the immediately prior term unless we notify you in writing of a price increase, which we will do at least 60 (sixty) days before expiration. Such price increases will not exceed 10%(ten percent) per year since the last price increase or start of service, whichever is later, unless the previous pricing was designated as special or one-time pricing.
10.3 Increases and Decreases. You may purchase additional licenses or services at any time, and the additional costs associated with these purchases will be based on current pricing, pro-rated to the end of your current contract term. Decreases in service or the number of licenses must be made at the end of your current term, and any renewal for a decrease in licenses will be based on current pricing without regard to prior per-license pricing.
11. GOVERNING LAW AND EXCLUSIVE JURISDICTION
11.1 Manner of Giving Notice. All notices, permissions and approvals given under this Agreement shall be in writing and shall be deemed to have been provided upon: (a) personal delivery, (b) the second business day after first class mailing, or (c) one day after receipt of an email sent to the email address of notice, or (d) one week after international express mailing. All notices to us shall be addressed to Mr. Gerald Newberry, Pros Elite Group Inc., 1936 Bruce B Downs Blvd #323, Wesley Chapel, FL 33544.
11.2 Consent to Governing Law and Exclusive Jurisdiction. Each party agrees to the applicable governing law of the following jurisdictions, without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of their courts as follows: Each Party agrees to participate, in good faith, in informal and confidential dispute resolution prior to bringing any claim against the other in a court of competent jurisdiction.
If you are located in the United States, or anywhere not specifically identified in this agreement, this Agreement shall be governed by the laws of the State of Florida, and adjudicated in the state courts located in Pasco County, Florida, or if required by law, the federal courts of the Middle District of Florida.
12. GENERAL PROVISIONS
12.1 Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
12.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld.
12.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.4 Prevailing Party. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover all costs and reasonable attorney’s fees.
12.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
