1. Services
(a) This Agreement will apply to Customer’s use of the ProText online software service (“Service” or “Services” as used throughout this Agreement).
(b) By accepting this Agreement, either through executing an Order Form that references this Agreement, or by signing this Agreement directly, Customer agrees that its use of the Services is subject to and bound by these terms and conditions.
(c) If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. You may not use the Service if you do not have such authority.
(d) You may not access the Service if you are a direct competitor of ProText.
2. License
ProText hereby grants to Customer a non-exclusive, non-transferable, worldwide, non-sublicensable right and license to use the Service for Customer’s internal business purposes, for the term specified in the applicable Order Form, subject to the terms of this Agreement and the applicable Order Form. ProText reserves all rights, title, and interest in and to the Service, including all related intellectual property rights, subject to the limited rights expressly granted hereunder.
3. Availability and Support
(a) ProText will provide the Service in a manner consistent with general industry standards, which includes reasonable service interruptions due to Excusable Delays or scheduled maintenance. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond ProText’ reasonable control (collectively referred to as “Excusable Delays”). Except for reasonable service interruptions due to Excusable Delays or regularly scheduled maintenance, the Service shall be available not less than 99% of the time, on a monthly basis.
(b) ProText will provide the following support services to Customer related to the Service for the duration of the Agreement: (a) email and telephone support regarding operation and use of the Service during ProText’ normal business hours (8:30AM to 5:30PM EST), and (b) programming to correct any demonstrated errors in the Service necessary to enable reasonable use of the Service. Customer should promptly report any errors in the operation of the Service to ProText.
4. Communications
(a) Customer will be exclusively responsible for the content of all communications sent using the Service.
(b) ProText does not own any data, information or material that Customer submits to the Service in the course of using the Service (“Customer Data”). Customer, and not ProText, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and ProText shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), ProText will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. ProText reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and ProText shall have no obligation to maintain or forward any Customer Data.
5. Restrictions
Customer will use the Service for internal business purposes only as contemplated by this Agreement and will not:
(a) use the Service in violation of or beyond the scope of license granted herein;
(b) use the Service in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party;
(c) permit any third party to access the Service, or otherwise sell, rent, license, provide, or distribute the Service; provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor”), if such Third Party Contractor has entered into a written agreement with Customer to:
(i) access and use the Services solely to perform services for Customer; (ii) treat the Services with confidentiality and not disclose or distribute the Services to any third party including any affiliates of the Third Party Contractor; and (iii) limit access to the Service only to employees or agents with a “need to know” in order to perform the Third Party Contractor’s agreed upon services for Customer.
(d) use the Service to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law;
(e) create derivative works from the Service, or otherwise reverse engineer or access the Service in order to (i) build a competitive product or Service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service;
(f) use the Service in any manner that could damage, disable, overburden, impair or otherwise interfere with ProText’ infrastructure or interfere or attempt to interfere with the proper working of the Service;
(g) attempt to gain unauthorized access to the Service or related systems or networks, or systematically access the Service using “bots” or “spiders”;
(h) use or distribute the Service in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations.
The restrictions set forth in this Section 5 shall survive termination of this Agreement.
6. Suspension
In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting ProText’ other rights and remedies, ProText may immediately, with written notice (email is sufficient) suspend Customer’s access to the Service.
7. Fees
Customer will pay all fees due for Service according to the prices and terms listed in the Order Form. All fees are non-cancelable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on ProText net income). In the event ProText pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse ProText.
8. Intellectual Property
ProText alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the ProText technology and the Service, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service (all of the foregoing being the “Rights”). To the extent that any such Rights are not deemed owned by ProText pursuant to the prior sentence, Customer hereby irrevocably assigns and transfers all such Rights to ProText. The ProText name, the ProText logo, the marks of ProText’ licensors, and the product names associated with the Service are trademarks of ProText or third parties, and no right or license is granted to use them. As between Customer and ProText, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property rights relating thereto; provided that Customer hereby grants a license to ProText to use the Customer Data for the purpose of providing and enhancing the Service.
9. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract or commitment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, ProText represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online ProText help documentation under normal use and circumstances. In addition, Customer represents and warrants that
(i) its use of the Service will comply with all applicable federal, state, and local laws and regulations, including those laws and regulations regarding telemarketing, customer solicitation, data protection, and privacy; and (ii) it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data.
10. Confidentiality
(a) The parties each acknowledge that the other party treats its products, development processes, business methods, business information, and prices as confidential to the extent permitted by the laws of the State of Georgia and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.
(b) During the Term of this Agreement, each party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information (but in no event less than reasonable care). Each party agrees not to use any Confidential Information of the other for any purpose other than exercising its rights and fulfilling its obligations hereunder and not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when received by the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party or (iv) was developed independently by the receiving party by individuals without access to the disclosing party’s information.
(c) The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) The obligations of the parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Term and for three (3) years thereafter.
(e) ProText and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other party may be irreparable; therefore, the parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.
11. Indemnification
(a) Customer shall indemnify and hold ProText, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of its representations and warranties; or (iii) a claim arising from the breach by Customer or its users of this Agreement, provided in any such case that ProText (w) gives written notice of the claim promptly to Customer; (x) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases ProText of all liability and such settlement does not affect ProText’ business or Service); (y) provides to Customer all available information and assistance; and (z) has not compromised or settled such claim.
(b) ProText shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the date of this Agreement, or a trademark of a third party; provided that Customer (a) promptly gives written notice of the claim to ProText; (b) gives ProText sole control of the defense and settlement of the claim (provided that ProText may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to ProText all available information and assistance; and (d) has not compromised or settled such claim. ProText shall have no indemnification obligation, and Customer shall indemnify ProText pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer’s products, service, hardware or business process(s).
In the event that any Service or deliverable is, or is likely to be, infringing, ProText, at its option and expense, may either (i) modify the Service(s) or deliverables so that they become non-infringing, (ii) replace the Services or deliverables with functionally equivalent non-infringing services reasonably acceptable to the Customer, (iii) procure for Customer the right to continue use, or, if the foregoing alternatives are not reasonably available to the Company, or (iv) terminate the relevant Order Form and refund the Fees paid for the affected Services or affected deliverables under such Order Form.
This “Indemnification” section states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other party for any type of claim described in this section.
12. Disclaimer and Limitation of Liability
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICE AND ALL DATA IS PROVIDED ON AN “AS IS” BASIS. TERMINUS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. TERMINUS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (iii) THE SERVICE WILL RESULT IN SALES, (iv) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TERMINUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TERMINUS AND ITS LICENSORS.
(b) IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Term and Termination
(a) Initial Term. The Initial Term of the Service shall commence on the start date agreed to on the applicable Order Form. Thereafter, unless either party gives the other party written notice of non-renewal at least five (5) days prior to the end of the then-current term, the Service shall renew for additional period(s) equal to the Renewal Term agreed to on the applicable Order Form. If a Renewal Term is not present on the applicable Order Form the Service shall renew for the duration of the Initial Term.
(b) Termination for Cause. Either party may terminate the Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
(c) Termination for Insolvency. In the event that either party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors, then such party will immediately give notice thereof to the other party, and the other party may terminate the Agreement upon written notice.
(d) Payment Upon Termination. Upon any Termination for Cause by ProText, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall termination by Customer or ProText relieve Customer of the obligation to pay any fees payable to ProText for the period prior to the effective date of termination.
(e) Assignment. This Agreement is binding on the parties hereto and their respective successors and permitted assigns. Either party may assign this Agreement to: (i) an affiliate controlled by, controlling, or under common control with the assigning party, or (ii) in connection with a merger or consolidation (so long as the assignment is to the newly merged or consolidated entity, and such entity is not a competitor of the non-assigning party) or all or the sale of substantially all of its assets (so long as the assignment is to the acquirer of such assets, and such acquirer is not a competitor of the non-assigning party). Any assignment in violation of this section is void.
(f) Force Majeure. ProText’ failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event that ProText is not able to provide Service during such event, during such period Customer’s obligation to pay for the Service shall be suspended.
(g) Surviving Provisions. Sections 5 (Restriction), 7 (Fees), 8 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Disclaimer and Limitation of Liability), 13.d (Payment Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.
14. General
(a) ProText may give notice to Customer by means of a general notice on the Service portal, electronic mail to Customer’s address on record in ProText’ account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in ProText’ account information. All notices to ProText shall be sent to ProText Software Inc., Attn: CEO, ProText, 75 5th Street NW, Suite 2414, Atlanta, GA 30308
(b) This Agreement shall be governed by Georgia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia. If any legal action is necessary to enforce the terms of the Agreement, the substantially prevailing party shall be entitled to reasonable legal fees and costs.
(c) No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.
(d) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes 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 shall be effective unless in writing and signed by both Parties. However, In case of conflict, the terms of the executed Order Form shall take precedence over the body of this Agreement.
(e) No text or information set forth on any other purchase order, preprinted form or document (other than the executed Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
(f) The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and ProText as a result of this agreement or use of the Service.
(g) ProText will be entitled to display Customer’s corporate name and logo on ProText’ website and marketing materials and to identify Customer as a ProText customer.
(h) No rules of construction are intended or shall be applied in the interpretation of this Agreement and both Parties hereto shall be deemed joint authors hereof for all purposes.
Contact Us
Should you have any questions in regards to these terms of service of ProText, please contact our representatives at the following email and they will be more than happy to clarify and assist you in any way possible: support@goprotext.com,
ProText
75 5th Street NW
Suite 2414
Atlanta, GA 30308