TERMS OF SERVICE
[Effective as of March, 2017]
These Terms of Service (“Agreement”) are entered into between You (referred to herein as “You” or “Subscriber”) and ProLink Solutions, Inc., a Colorado corporation (“ProLink” or “We”) with respect to ProLink’s collaborative task management software known as “Procorem”®, including any additional Procorem Applications (the “Software”).
By registering as a Procorem Subscriber, or by accepting an assignment of this Agreement from a Procorem Subscriber, You agree to the following terms and conditions. This Agreement will be effective as of the date that ProLink receives and validates Your registration information, and ProLink reserves the right to withhold consent to register You as a Subscriber for any reason.
By using any of the Software or other services offered through this Agreement, You agree to be bound by these terms. If You are using the Services on behalf of an organization, You agree to these terms for that organization and warrant that You have the authority to bind that organization and its affiliates to these terms. If this Agreement has been assigned to You from the original Subscriber either by contract, testament or operation of law, You are bound by these terms and conditions as of the effective date of the assignment and You are required to provide ProLink with updated account registration and contact information. You may use the Software and other services only in compliance with this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SOFTWARE OR ANY PROLINK SERVICES. Should You have any questions concerning this Agreement, please contact firstname.lastname@example.org.
ProLink reserves the right to modify or replace the terms of this Agreement at any time in our sole discretion. We will notify You by email, using Your current contact information, in the event that any modifications are made. Any modifications to this Agreement will be effective upon the date We provide You with such notice.
1. GRANT OF LICENSE; RESTRICTIONS
1.1 Grant of License. ProLink grants Subscriber a nonexclusive, transferrable, assignable worldwide license to access and use the Software and any related documentation. All rights not expressly granted to Subscriber are reserved by ProLink.
1.2 Restrictions on Use. The right of use is at all times conditioned on prompt and timely payment of Subscription Fees, where applicable, and on compliance with all other provisions of this Agreement. You may use the Software on an unlimited number of computers and user sites, provided such use is only for Your internal business purposes. You agree not to (a) license, sublicense, sell, lease, resell, distribute or otherwise commercially exploit or make the software available to any third party; (b) modify or make derivative works based upon the Software; (c) attempt, or assist a third party, to decompile, disassemble or reverse engineer the Software, or otherwise attempt to determine the logic structure, architecture or other internal system design for the Software, including for the purpose of building a competitive product or service; or (d) build a product using similar ideas, features, functions or graphics of the Software, or copy any ideas, features, functions or graphics of the Software.
2. TERM; TERMINATION
2.1 Term. The license granted under this Agreement shall commence on the Effective Date and will continue indefinitely until Your Subscription has expired or been terminated.
2.2 Termination. You may terminate this Agreement at any time for any reason. ProLink may terminate this Agreement at any time if You commit a material breach of this Agreement and fail to cure such breach within thirty (30) days following Your receipt of notice of breach, provided that ProLink may terminate the Agreement immediately in the event of a breach of Sections 1.2, 6.4 or 7.2. In addition, ProLink may, at its sole discretion, temporarily suspend services, including access to Subscriber Content, if deemed to be necessary in connection with (a) the actual or suspected violation of this Agreement; (b) the use of the Software in a manner that may cause ProLink to incur liability or disrupt others’ use of the Software; (c) the suspicion or detection of any malicious code, virus or other harmful code by You or in Your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages.
2.3 Effect of Termination. Upon termination, all of Your rights to access and use the Software, and any similar rights that You have granted to any employees, affiliates, customers, agents or representatives, will immediately cease.
2.4 Data Archiving Policy. If You elect to cease accessing or using the Software, or if this Agreement is terminated for nonpayment of required fees or other breach, You may still, by providing ProLink with notice, paying required fees and complying with ProLink’s data retention policies, retain a separate secure data file within ProLink’s data storage archive containing Subscriber Content that You designate and making such Subscriber Content available to third parties. Retention of such Subscriber Content will continue indefinitely subject to all applicable terms of this Agreement. ProLink reserves the right to require payment of past due fees prior to allowing access to Your Subscriber Content, and reserves the right to destroy Subscriber Content in the event that fees and other requirements are not satisfied following written demand.
3.1 Subscription Fee. You agree to pay the Subscription Fees as set forth on the ProLink Fee Schedule. Additional Fees may also be imposed for assignment of the Agreement and archiving of Subscriber Content. You are responsible for all taxes and other charges (for example, data charges and currency exchange settlements). ProLink reserves the right to amend the Fee Schedule at any time, and such amendments will be effective thirty (30) days following notice to You, at the Subscriber address that is on record. In addition to any Subscription Fees, You may still incur, and are solely responsible for, third party charges incidental to using the Software, including, without limitation, charges for Internet access, data roaming, and other data transmission charges. No refunds shall be made unless expressly authorized by ProLink.
3.2 Payment Methods. You must be authorized to use the payment method and account information that You enter when You register as a Subscriber. All fees are required to be paid in advance unless otherwise agreed in writing by ProLink. You authorize ProLink to make direct withdrawals from Your designated credit or bank account to pay Subscription Fees or any other costs or charges assessed or incurred by ProLink under this Agreement. You must keep all information in Your billing account current. You may change Your method of payment or account information by notifying ProLink in accordance with the payment guidelines set forth in this Agreement or on the Fee Schedule. In the event of a suspension of services, ProLink reserves the right to impose a reconnection fee.
4. PROLINK SUBSCRIBER SUPPORT.
4.1 ProLink may, in its sole discretion, issue unscheduled new releases or enhancements to the Software from time to time, which will be made available to all valid Subscribers. Additional online support may be made available in return for payment of additional support fees as set forth on the ProLink Fee Schedule.
5. SUBSCRIBER’S SYSTEM REQUIREMENTS.
5.1 Subscriber is responsible, at its expense, for providing and maintaining all required network, electronic and telecommunications connectivity, computer equipment, and facilities necessary for Subscriber’s use of the Software. ProLink is not responsible for any performance issues encountered as a result, in whole or in part, of Subrscriber’s information technology system or environment.
6. OWNERSHIP OF SOTWARE, EVALUATION INFORMATION AND SUBSCRIBER CONTENT.
6.1 Software. ProLink alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software, all documentation, materials and information furnished by ProLink, including all subsequent modifications, changes, corrections or enhancements to the Software, whether or not authorized by ProLink. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Software. PROLINK®, PROCOREM® and all other product names or logos associated with the Software are trademarks of ProLink and no right or license is granted to use them.
6.2 Evaluation and Comments. All suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Software shall be the sole property of ProLink, and all such information shall be considered ProLink’s Confidential Information. ProLink reserves the right to incorporate any such information into the creation of new releases, upgrades or enhancements to the Software, and You hereby assign to ProLink, without any additional compensation, all right, title and interest, including intellectual property rights, in and to such information as well as any new releases, upgrades or enhancements developed on the basis of such information.
6.3 Subscriber Content; Ownership. You shall remain the owner of all information, documents, data and materials that You either create, originate or legally furnish or use from a third party source in connection with Your use of the Software (“Subscriber Content”). ProLink does not acquire ownership of such Subscriber Content, provided, however, that You authorize ProLink to host, copy, reproduce, transmit, display, modify and adapt Your Subscriber Content, solely as necessary for ProLink to: (a) furnish the services set forth in this Agreement or as necessary in connection with ProLink’s monitoring of Your account for quality control, error correction and compliance with ProLink’s legal obligations; and (b) investigation of any existing or suspected breach of this Agreement, or if deemed necessary to protect ProLink’s obligations to other subscribers. ProLink will make commercially reasonable efforts to maintain the security of Subscriber content. However, ProLink shall have no liability of any kind as a result of deletion, loss, correction, destruction, damage to, or failure to store or encrypt any Subscriber Content, or from any other party accessing such Subscriber Content if such party has utilized appropriate authorization and password information.
6.4 Your Obligations Regarding Subscriber Content. You are solely responsible for the nature, quality and accuracy of Subscriber Content. ProLink will provide functions that allow You to control who may access Your Subscriber Content. If You enable the features that allow You to share the Subscriber Content with others, anyone with whom you have shared Subscriber Content or to whom you have given authorization (including the general public, in certain circumstances) may have access to Your Subscriber Content and You acknowledge that ProLink does not verify, or endorse the safety of any Subscriber Content made available to others, nor does ProLink verify access permission other than requiring use of current authorization and password codes. You represent and warrant that You have all the rights in the Subscriber Content necessary for You to use Subscriber Content and to grant rights to the storage, transmission or use of the Subscriber Content as contemplated in this Agreement. You agree to promptly handle and resolve any notices and claims relating to the Subscriber Content, including any notices sent to You by any person claiming that any Subscriber Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices, and to maintain appropriate security, protection and backup copies of the Subscriber Content, which may include Your use of additional encryption technology to protect the Subscriber Content from unauthorized access. You must immediately notify ProLink in writing of any existing or suspected unauthorized use of or access to Subscriber Content and take all steps necessary to cooperate with ProLink in terminating such unauthorized use following notice.
6.5 Disclosure of You as a Subscriber. You agree that ProLink shall have the right to disclose the fact that You are a Subscriber, provided such disclosure does not furnish specific contact details or grant access to any of Your Subscriber Content.
7.1 Confidential Information Defined. As used herein, “Confidential Information” shall mean any technical or business information furnished, in whatever form or medium, disclosed or made accessible by one party to the other (including, but not limited to, product/service specifications, prototypes, computer programs, models, drawings, marketing plans, financial data, personnel statistics),.
7.2 Restrictions on Use of Confidential Information. Each party agrees to hold Confidential Information of the other party in strictest confidence and shall use same solely for the purposes of this Agreement unless otherwise authorized in writing by the disclosing party.
8. WARRANTY, INDEMNIFICATION AND LIABILITY
8.1 ProLink Warranty. ProLink warrants and represents that it owns or has acquired the necessary rights to grant the license to Subscriber set forth herein. ProLink will at all times reasonably attempt to achieve the highest possible availability of the Software, but no warranty is made with regard to specific availability or time of access. ProLink makes no warranty with respect to recovering or restoring any lost Subscriber Content, and Subscriber acknowledges having been advised to secure separate backup services for all Subscriber Content. You further acknowledge that ProLink may utilize cloud-based or other third party web-based services in connection with transmission and storage of Subscriber Content, and ProLink does not guarantee or warrant the security of such Subscriber Content to the extent it is made accessible through such third party services, other than as provided in Section 6.3. Subscriber’s use of the Software is at Subscriber’s sole risk and Subscriber acknowledges that the Software and associated documentation may contain defects, fail to comply with applicable specifications, and may produce unintended or erroneous results either alone or when operated in combination with other products or programs. Subscriber accepts the software “as is” without any other warranty whatsoever, specifically excluding, wthout limitation, any warranty of fitness for a particular purpose. ProLink may at various time provide Subscribers with links to websites operated by third parties, and Subscriber acknowledges that ProLink makes no warranty or representation as to the content, goods or services provided on such third party websites.
8.2 ProLink Indemnification of Subscriber. ProLink Subscriber, its officers, directors, affiliates, agents and employees from and against any and all claims, demands, litigation, expenses and liabilities (including costs and reasonable attorneys’ fees) arising from or incident to any claims that the Software infringes any trade secrets, trademark, copyright or patent rights of any third party. This shall not apply to the extent that any such claim is the result of Subscriber’s misuse of the Software, combination of the Software with components or software not furnished by ProLink, use of a superseded version of the Software, or unauthorized modification of the Software. Subscriber agrees to cooperate with the defense of any such claims, at ProLink’s expense. ProLink may, at its sole option, and in additional to any other rights, respond to such claims by modifying the Software so as to remove the infringing component, procuring from the claimant the right to continue to use the Software under this Agreement, or terminating this Agreement.
8.3 Subscriber’s Indemnification of ProLink. You shall indemnify, hold harmless and defend ProLink and its officers, directors, affiliates, agents and employees from and against any and all claims, demands, litigation, expenses and liabilities (including costs and reasonable attorney’s fees) arising from any claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) asserted by a third party regarding Your use of the Software, Your use or disclosure of Your password, Your use, transmission, storage, access to or modification of Subscriber Content, any unauthorized access to or use of Subscriber Content if such access occurred through use of current password and authorization codes, or any other act or omission in violation of the law or of the terms of this Agreement.
8.4 Disclaimer and Limitation on Liability and Damages. IN THE EVENT THAT YOU BRING ANY CLAIM, DEMAND OR CAUSE OF ACTION AGAINST PROLINK FOR ANY REASON WHATSOEVER, THE EXTENT OF PROLINK’S LIABILITY FOR ANY DAMAGES SHALL BE LIMITED TO THE AMOUNT PAID BY YOU PURSUANT TO THIS AGREEMENT, OVER THE COURSE OF THE SIX MONTHS NEXT PRECEDING THE DATE OF YOUR CLAIM. OTHER THAN AS SET FORTH ABOVE IN THIS ARTICLE 8, NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COMMERCIAL LOSS, LOST PROFITS, LOSS OF VALUE, DAMAGES OR OTHER DAMAGES HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY OR FORESEEABILITY, WHICH DIRECTLY OR INDIRECTLY ARISES UNDER THIS AGREEMENT OR A BREACH OF THIS AGREEMENT. SUBSCRIBER SHALL BE RESPONSIBLE FOR ANY USE OF THE SOFTWARE IN SUBSCRIBER’S OPERATIONS AND FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SOFTWARE. SUBSCRIBER ACCEPTS ALL RISK OF LOSS OCCASIONED BY SOFTWARE DEFECTS, LOSS OF DATA OR FAILURE OF THE SOFTWARE TO OPERATE PROPERLY OR IN ACCORDANCE WITH SPECIFICATIONS.
9.1 Independent Contractor. Each party hereunder is acting as an independent contractor and not as an agent, employee, representative or affiliate of the other. Neither party shall have or claim to have any authority to act for the other’s behalf, to bind or incur any debts or liabilities in the name of or on behalf of other, or to control or answer for the acts of the employees of the other. Each party shall be responsible for, and shall indemnify, defend and hold the other harmless from, claims arising from the acts of its own employees. Each party is responsible for all matters relating to payment of its employees and agents, including compliance with worker’s compensation, unemployment, disability insurance, social security withholding, and all other federal, state and local laws, rules and regulations.
9.2 Entire Agreement. This agreement contains the entire agreement between the parties hereto with respect to the matters covered herein and supersedes all prior or contemporaneous agreements, understandings and representations, both oral and written. All provisions of this Agreement which confer benefits or impose obligations that, by their nature, extend beyond the termination date of this Agreement, shall survive such termination as necessary to render them fully enforceable.
9.3 Severability. If any provision of this Agreement is held invalid or unenforceable, such determination will not affect the remaining portions of this Agreement, and the parties agree that the affected provisions shall be amended to the extent necessary to render it enforceable so as to carry out the intent of this Agreement.
9.4 Force Majeur. Neither party shall be liable for failure to perform solely caused by circumstances beyond such party’s control.
9.5 Assignment. Either party may assign this Agreement to a third party in connection with a merger, acquisition, reorganization or sale of all or substantially of such party’s assets. In addition, You may assign this Agreement to third parties by contract, testamentary instructions or through other succession that occurs by operation of law, provided that in all cases ProLink is not obligated to acknowledge or be bound by such assignment if the assigning party is in breach or if the assignee fails to consent to be bound by all provisions of this Agreement. In all cases this Agreement is binding upon each party’s heirs, successors and assigns.
9.6 Notices. All notices permitted or required under this Agreement shall be in writing and shall be directed to the addresses appearing below. Notwithstanding Subscriber’s consent to receipt electronic communications, any notice shall be deemed received and effective as follows: (a) when delivered, if delivered in person; (b) on the first business day during which a legible transmission of the notice was completely received prior to 5:00 p.m. (at the recipient’s time zone), if sent by telecopier (“fax”) machine, or by email transmission of a digitally scanned version, or by text sent in an electronic message; (c) one (1) day after mailing, if sent by overnight courier; and (d) two (2) days after mailing, if sent by first class mail postage prepaid. A facsimile or photocopy of such notice, or of this Agreement shall be treated as an “original” document admissible into evidence unless a document’s authenticity is genuinely placed in question.
9.7 Waivers. The failure of either party to exercise any right shall not be construed to be a waiver unless agreed upon in writing. A waiver in any one instance shall not constitute an amendment to this Agreement or indicate any continued waiver of such right(s) on any other occasion.
9.8 Entire Agreement; Modifications or Amendments. This Agreement sets forth the entire agreement and understanding of the parties, and supersedes all prior representations or communications of any kind. No modifications or amendments shall be made to this Agreement unless in writing and signed by the parties.
9.9 Governing Law; Venue; Attorney’s Fees. This Agreement shall be governed and interpreted under the laws of the State of Colorado, notwithstanding the application of any conflicts of law principles. Venue for any legal action commenced to enforce or interpret this Agreement shall be exclusively vested in the state and federal courts having jurisdiction over Arapahoe County, Colorado, and the parties expressly submit to the exercise of jurisdiction over them for such actions. If any legal action is required to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to recover, in addition to any other remedies, all attorney’s fees and costs incurred in connection with such action.
9.10 Authority. Each party signing this Agreement warrants that such party has the full and necessary authority and capacity to bind the party represented by such party’s signature to each and every obligation set forth in this Agreement.
9.11 Injunctive Relief. You agree that any breach of this Agreement by You would cause ProLink to suffer severe, irreparable and incalculable injury, not fully compensable through an award of monetary damages, and that in the event of any such existing or threatened breach, ProLink shall be entitled, in addition to any other remedies, to injunctive or other equitable relief without the necessity of posting an undertaking, which requirement is hereby expressly waived.
9.12 Consent to Electronic Communications. By registering as a ProLink Subscriber, You understand and acknowledge that We may send You communications or data regarding the Software or this Agreement, Services, including but not limited to (a) notices about Your use of the Software, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding ProLink products and services, via electronic mail using the address information that You provide. You acknowledge that failure to maintain current contact information with ProLink means that You may not receive proper, current or accurate notices and that You are solely responsible for such occurrences.