IMPORTANT: PLEASE READ THIS SOFTWARE-AS-A-SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” CHECK BOX OR OTHERWISE SUBSCRIBING TO AND/OR USING THE SERVICE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. 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 THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD NOT SUBSCRIBE TO OR USE THE SERVICE.
This Agreement is a legally binding agreement between you and Project Partners, LLC. (or, if applicable based on where you reside, one of its Affiliates). This Agreement consists of the below terms and conditions, the SLA applicable to the Service, and the pricing and payment terms made available relating to the Service. The Service also may contain other posted notices, policies or codes of conduct, all which are incorporated by reference into this Agreement.
This Agreement is entered into as of the earliest of the date that you accept the terms and conditions herein, the date set forth on an Order, or the date on which you download, install, activate or use the Service.
“Affiliate” means, with respect to a party, any legal entity that such party controls, that controls such party, or that is under its common control with such party. “Control” means, for purposes of this definition, ownership of more than fifty percent (50%) of the outstanding voting shares or other equity interest of the entity. If Customer is an agency of a state, provincial or local government, “Affiliate” means, with respect to such Customer, (a) any governmental agency, body, authority, department, office, instrumentality, division, unit or other entity, of Customer's state, provincial or local government that is supervised by, or is part of, Customer, or which supervises Customer or of which Customer is a part, or which is under common supervision with Customer; (b) any county, borough, commonwealth, city, municipality, town, township, special purpose district or other similar type of governmental instrumentality established by the laws of Customer's state or province and located within Customer's state's or province's jurisdiction and geographic boundaries; and (c) any other entity, organization or authority in Customer's state or province expressly authorized by the laws of Customer's state or province to purchase under state or provincial contracts; provided that a state or province and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government or its Affiliates. Notwithstanding the forgoing, provincial Crown corporations are not Affiliates for the purposes of this definition. If Customer is an agency of the U.S. government, “Affiliate” means, with respect to such Customer, any other agency of the U.S. government. If Customer is an agency of the Canadian government, “Affiliate” means any other agency of the Canadian government, except for a federal Crown corporation.
“Project Partners” means Project Partners, LLC or its Affiliates.
“Content” means all data, including all text, sound, video or image files and software, that are provided to Project Partners by, or on behalf of, Customer, its Users and Associated Account Users (as defined in Section 8) through their use of the Service.
“Customer” means the individual or entity that has entered into this Agreement. If an individual enters this Agreement on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind such entity to this Agreement.
“Documentation” means the written and/or electronic release notes, implementation guides or other published technical documentation about the applicable Service that are provided by Project Partners to Customer together with access to the Service.
“Mobile App” means the object code version of Project Partners' proprietary computer program made available by Project Partners for download by Customer on mobile devices for use in connection with the Service. The Mobile App is a component of the Service and is included in references thereto, except in this definition and in Section 2.2 and anywhere else addressed separately.
“Order” means any ordering document between Customer and Project Partners that identifies the Service being purchased. An Order may include multiple Subscriptions to the Service.
“Service” means the Project and/or operational related services (including pre-release services and add-on services related thereto) made available by access to and use of software products hosted by Project Partners to which Customer has subscribed under the relevant Order, including any Documentation, updates, upgrades, support and content (e.g., audio and visual information and documents) contained in the software products or made available to Customer by Project Partners in the course of providing the Service. Project Partners may change the feature and functions of the Service at any time and for any reason without notice.
“SLA” means Project Partners’ standard Service Level Agreement, currently posted at http://www.projectp.com/solutions/cloud/pdf/PP_SLA_for_CPS_2021.pdf.
“Subscription” means the part of the Order identifying the specific Service being ordered by Customer and may include the User quantity, address or other information.
“Term” means the duration of a Subscription.
“User Licenses” refers to the named licenses that Customer has purchased under its Subscription for the Service.
“Users” means individuals within Customer's organization who are authorized by, or on behalf of, Customer to use the Service, as dictated by the number of User Licenses purchased by Customer.
- RIGHTS OF ACCESS AND USE
- General. Subject to Customer's obligation to pay and the terms and conditions of this Agreement, during the applicable Term, Project Partners grants to Customer a non-exclusive, non-transferable limited right to access and use the Service solely for Customer's internal business operations and in accordance with the applicable Documentation. Customer may reproduce and use the Documentation solely as necessary to support use of the Service. Customer acknowledges and agrees that Customer's ability to use the Service may be affected by minimum system requirements or other factors. Project Partners reserves all rights not expressly granted.
- Mobile App Software. Project Partners grants Customer a non-exclusive, non-transferable limited right to copy and install the Mobile App solely as a component of the Service, provided that Customer must comply with the restrictions set forth in this Section 2.2. Customer agrees that Customer does not acquire any license to use the Mobile App in excess of the scope and/or duration of the Service. Copies of the Mobile App created pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy of the Mobile App itself. Customer receives no rights to the Mobile App other than those specifically granted in this Section 2.2. Customer may make copies of the Mobile App solely in connection with the use of the Service by its authorized Users. Copies must be true and complete copies (including all copyright and trademark notices contained therein) and be made from a Project Partners approved media or a network source. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party's compliance with this Agreement. Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to access and use the Service aware that the Mobile App is licensed from Project Partners and is subject to the terms of this Agreement. Additional rights and restrictions relating to the Mobile App may accompany the provision of the Mobile App, and Customer agrees to abide by all such additional rights and restrictions.
- Authorized Users. Customer may provide access to the Service to those individuals whom Customer designates as authorized Users, provided Customer is responsible for their actions that violate the terms of this Agreement. Only Users who have administrator privileges may add additional authorized Users to access and use the Service during the Term, up to and including the total number of User Licenses purchased pursuant to the relevant Order. User Licenses cannot be shared or used by more than one individual authorized User. However, a User who has administrator privileges may remove an authorized User from the Subscription and add a new authorized User to the Subscription to replace the former authorized User.
- Ownership. Project Partners or its licensors retain all ownership and intellectual property rights to the Service. Project Partners retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.
- Use Restrictions. As a condition of the rights granted in Section 2.1, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble or attempt to derive any source code from the Service (except and only to the extent any foregoing restriction is prohibited by applicable law) or access or use the Service in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Project Partners; (b) modify, adapt or create any derivative works based on the Service; (c) rent, lease, lend, resell, distribute, license, display, transfer, host or otherwise provide any part of the Service to third parties, except as expressly provided in this Agreement; (d) provide the Service as a service to unaffiliated third parties, including but not limited to, on a service bureau, software-as-a-service (SaaS) or time-sharing basis; (e) unbundle any component of any Service; or (f) use the Documentation except for supporting Customer's authorized use of the Service; or (g) use the Service to store or transmit malicious code or infringing, libelous, unlawful or tortious material; or (h) disrupt the integrity or performance of any part of the Service accessed as a service. Customer shall make every reasonable effort to prevent unauthorized access to or use of the Service and notify Project Partners promptly of any such unauthorized access or use. Except as expressly provided in this Agreement, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to, electronic, mechanical, photocopying, recording or other means.
- Service Levels. Project Partners shall provide the remedies listed in the then-current SLA for any failure of the Service listed in such SLA. Such remedies are Customer's sole and exclusive remedy for any failure of the Service, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeited upon expiration or termination of this Agreement. Project Partners is not required to issue refunds or make payments against such credits under any circumstances, including without limitation, after termination of this Agreement. The SLA is subject to change at Project Partners’ discretion; however, any such changes will not result in a material reduction in the service levels during the period for which fees for the Service have been paid.
- Ordering, Pricing, Payments, Returns, Renewals and Taxes
- Ordering. Customer shall place an Order for each Subscription for the Service via any means made available by Project Partners for such Ordering. If Customer desires to use the Service (a) for more than the total number of User Licenses available through the Service level Customer subscribed to or (b) for different types of User Licenses than Customer subscribed to, then Customer must subscribe to the appropriate Service level prior to commencing any such use. Customer may not reduce the number of Users. However, at the time of renewal of the Subscription, Customer can place an Order for a reduced number of Users. Any Service added to a Subscription will expire at the end of the Term. Each Subscription shall be for a defined Term (e.g., thirty (30) days or twelve (12) months). Customer may place Orders for its Affiliates under this Agreement and grant its Affiliates administrative rights to manage the Service. Affiliates may not place Orders under this Agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this Agreement and Customer shall be responsible for such Affiliates' compliance with this Agreement. Customer agrees that it and its Affiliates shall be jointly and severally liable for any Service ordered for, or other actions taken by, any of its Affiliates or any third party to which it provides access to the Service under this Agreement.
- Subscription Fees. “Subscription Fees” means the periodic amount Customer is required to pay for the Subscription to the Service. Customer may be required to pay the Subscription Fees in advance, in arrears or both. Project Partners may charge Customer at one time for more than one billing period. A schedule of applicable Subscription Fees is available via the Order or other means made available by Project Partners. Payments are due and must be paid in accordance with the Order. Any changes to the price level that Customer wishes to subscribe to cannot be applied retroactively. Prices for each price level are fixed at the time the Subscription is first placed and shall apply throughout the Term. Subscription Fees are subject to change at the beginning of any Subscription renewal. All Subscription Fees due under this Agreement are non-cancelable and the sums paid are non-refundable.
- Free Trial Period; Returns. Customer acknowledges that Project Partners offers a limited free trial prior to Customer's Subscription. Otherwise, Customer hereby agrees that Customer shall not be entitled to any refund or any return of any product purchased. Once Customer pays for a Subscription, all sales are final. Services purchased also are non-refundable. No refunds or credits will be given for partial months of Service, for account downgrades or for any months unused with an open account. In addition, Customer acknowledges and agrees that any data conversion, training and customization of the Service that may be required prior to Customer's use of the Service will not impact Customer's ability to obtain a refund or make a return in contravention of this Section.
- Renewal. If Customer selects the automatic renewal option at the time of Customer's Subscription, Customer's Subscription shall automatically renew at the expiration of the then-current Term, unless Customer provides Project Partners with a written notice to cancel Customer's Subscription at least thirty (30) days prior to the end of the Customer's then-current Term. Without such written notice of cancelation, Project Partners will automatically Invoice Customer. If payment is not received within 30 days, Customer will have a five (15) days' grace period remit payment in order to renew the Subscription.
- New Agreement. Prior to placing new Orders, renewing any Subscriptions, or further use of the Service, and upon notice, Project Partners may require that Customer enter into an updated agreement to govern Orders, renewal Subscriptions or usage from that date forward.
- Taxes and Other Incidental Charges. The prices and rate plans do not include any taxes, phone and Internet access charges, mobile text messaging charges, wireless service charges and other data transmissions charges, unless expressly stated otherwise. Customer is responsible for all such incidental charges and any taxes it is legally obligated to pay including, but not limited to, paying Project Partners any applicable value added, sales or use taxes or like taxes that are permitted to be collected from Customer by Project Partners under applicable law. If any taxes are required by law to be withheld on payments made by Customer to Project Partners, Customer may deduct such taxes from the amount owed Project Partners and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to Project Partners an official receipt for any such taxes withheld and/or other documents necessary to enable Project Partners to claim a foreign tax credit, if applicable. Customer will make best efforts to ensure that any taxes withheld are minimized to the full extent possible under applicable law.
- Refunds. All charges are non-refundable unless otherwise required by applicable law.
- Late Payments. Except to the extent prohibited by law, Project Partners may assess a late charge if Customer does not pay on time, regardless of any disputes Customer may have raised about its bill. Customer must pay any late charges as and when billed by Project Partners. The late charge will be the lesser of five percent (5%) of the unpaid amount each month or the maximum rate permitted by law. Project Partners may use a third party to collect past due amounts. Customer agrees to pay for all reasonable costs (including, but not limited to, reasonable attorneys' fees and other legal fees and costs) incurred by Project Partners in collecting any past due amounts. Project Partners may suspend or cancel the Service if Customer does not pay any outstanding fees, charges and other amounts in full and on time.
- Term and Termination
- Term. The access rights granted herein with respect to the Service shall remain effective until the Term expires or is earlier terminated in accordance with this Agreement. At the end of the Term, all rights to access or use the Service shall end. If Project Partners agrees to reinstate a lapsed Subscription, then the terms of this Agreement shall apply.
- Termination by Project Partners. Project Partners may terminate or suspend Customer's use of the Service, or a portion thereof, at any time if (a) Customer violates any term or condition of this Agreement, (b) Project Partners reasonably believes that Customer's use of the Service represents a direct or indirect threat to its network function or integrity or any other person's use of the Service, or (c) Project Partners is otherwise required by law to do so. Upon written notification by Project Partners of any such termination or suspension, Customer's right to access or use the Service shall terminate or become suspended, as applicable, immediately; provided, however, that Project Partners will not be required to provide any notification to Customer if the termination or suspension occurs as a result of an event described in clause (b) of the foregoing sentence. Any termination or suspension of the Service by Project Partners due to Customer's violation of any term or condition of this Agreement shall not affect Customer's obligation to pay any Subscription Fees and other charges remaining unpaid for the applicable Term. Project Partners may also terminate or suspend Customer's use of the Service for convenience at any time during the Term by providing one (1)-month's prior written notice of such termination or suspension to Customer.
- Termination by Customer. Customer may not terminate a Subscription or this Agreement or reduce the number of User Licenses at any time during Customer's then-current Subscription period. Any pre-paid Subscriptions shall be non-refundable.
- Effect of Termination. Upon expiration or termination of the Service for any reason by either Customer or Project Partners, all rights to access and use the Service shall end and Customer shall cease all use of the Service and delete, destroy or return all copies of the Documentation in its possession or control. In addition, Project Partners may permanently delete Customer's Content from its servers; provided, however, that Project Partners will keep a copy of Customer's Content for a period of sixty (60) days following the date of termination before permanently deleting such Content from Project Partners servers. Customer acknowledges and agrees that Customer is solely responsible for taking all necessary steps to back up Customer's Content and ensure that Customer has all sufficient data and resources to maintain Customer's primary means of business at all times. The following Sections, and all liabilities that accrue prior to termination, shall survive expiration or termination of this Agreement: Sections 2.4, 2.5, 3.1 (last two sentences), 3.2, 3.5, 3.6, 3.7, 4.1, 4.2, 4.3, 4.4, 4.5, 5.2, 5.3, 6.1, 6.2, 6.5, 6.6, 7, 9, 10, 11, 12, 13, 14, 15 and 16.
- No Liability for Deletion of Content. Customer acknowledges that, other than as expressly provided in this Agreement, Project Partners shall have no obligation to continue to hold, maintain, export or return Customer's Content following any expiration or termination of the Service or this Agreement. Customer acknowledges and agrees that Project Partners shall have no liability whatsoever for any deletion of Content in accordance with this Agreement.
- Transfer of Personal Information. Personal information collected through the Service may be stored and processed in the United States or any other country in which Project Partners or its Affiliates or agents maintain facilities. By using the Service, Customer consents to any such transfer of its personal information outside of its country.
- Performance and Usage Data. In order to provide the Service, Project Partners may collect, analyze and use aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile applicable usage) to facilitate market research, product development/improvement and to provide support and maintenance services and may automatically upload this information from Customer's computers. Project Partners may use, store or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
- Filtering Technology. Project Partners may use technology or other means to protect the Service, protect its customers and/or stop customers from breaching this Agreement. Examples include filtering to stop spam and viruses or increase security. These means may hinder Customer's use of the Service.
- Communications. Because the Service is a hosted, online application, Project Partners may need to occasionally notify Users of the Service of important notices or announcements regarding the operation of the Service, including any changes to Project Partners’ terms, conditions and policies relating to the Service. As a condition of the Service, Users agree to receive such communications from Project Partners. Customer also receive promotional or marketing communications from Project Partners from time to time. If Customer wishes to opt out of receiving promotional or marketing communications from Project Partners, Customer may go to www,projectp.com/optout and update Customer' contact preferences.
- Use Rights and Limitations
- Customer Obligations. In using the Service, Customer shall:
- comply with all applicable laws;
- comply with any codes of conduct, policies or other notices provided by Project Partners;
- promptly notify Project Partners if Customer learns of a security breach or unauthorized access related to the Service.
Customer shall not:
- use or permit use of the Service in any way that harms Project Partners or its Affiliates, agents, representatives, resellers, distributors, licensors and/or suppliers (collectively, the “PP Parties” and, individually, a “PP Party”), or any customer of a PP Party or the Service, or other Users;
- use or permit use of the Service to engage in, facilitate or further unlawful conduct;
- use or permit use of the Service for any purpose that violates privacy rights or constitutes an infringement of intellectual property or other proprietary rights;
- damage, disable, overburden or impair the Service (or the networks connected to the Service) or interfere with anyone's use and enjoyment of the Service;
- resell or redistribute the Service, or any part of the Service, unless Customer has a contract with Project Partners that expressly permits it to do so;
- use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”);
- use any unauthorized automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored by Project Partners or “meta-searching”), however, periodic automated access to the Service for report creation or scheduling is permitted;
- use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;
- modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology or system used by Project Partners in connection with providing the Service, except and only to the extent that applicable law expressly permits Customer to do so despite this limitation;
- create Internet “links” to the Service or “frame” or “mirror” any content of the Service to give the impression that Customer is offering all of the functionality of the Service as its service located on its own servers;
- build a product or service using similar ideas, features, functions or graphics of the Service; or
- copy any ideas, features, functions or graphics of the Service.
- Limits on Service. Project Partners may establish limits on the Service. For example, it may limit the number of days the Service will retain any content that Project Partners, Customer or its Users provide, the number and size of email messages that Customer may send or receive through the Service, the maximum storage space on Project Partners’ servers available to Customer, the number of Service accounts to which Customer may subscribe, how long Project Partners retains an inactive Service account (i.e., one where Customer does not sign in to the Service for an extended period of time), the number of transactions Customer can conduct through the Service, and the number of asynchronous transactions that can be executed with an organization.
- Use of Other Project Partners Services. Customer may need to use certain Project Partners websites or services to access and use the Service. If so, the terms and conditions of use associated with those websites or services, as applicable, apply to Customer's use of them.
- Third-Party Services. Project Partners may make services from third parties available to Customer through the Service. Such third-party services are the responsibility of the applicable third party, not Project Partners. The third-party service providers may require Customer to accept additional terms and conditions and/or pay a fee in order to use their services. Such additional terms and conditions are between Customer and the applicable third party, and Customer bears all risks associated with the access and use of any such third-party services. Any third party's use of information Customer provides as part of using their service is subject to the privacy policies and practices of such third party and/or their suppliers. Project Partners encourages Customer to review the privacy policies of such third-party providers. Project Partners is not responsible for the privacy policies or practices of such third-party providers or their suppliers.
- Third-Party Software. Customer is solely responsible for any third-party software which Customer may install in or use with the Service. Project Partners is not a party to and is not bound by any terms governing Customer's use of any third-party software, and Customer acknowledges that it will direct and control the installation in and use of such software with the Service. Project Partners will not run or make any copies of third-party software licensed by the Customer except to the extent necessary to support Customer's use of the Service. Customer may not install or use any third-party software in any way that would subject Project Partners’ intellectual property or technology to obligations beyond those contained in this Agreement. Project Partners does not, and will not have any obligation to, provide technical or other support for any third-party software. Project Partners does not make any representation or warranty that any third-party software will operate successfully with the Service or continue performing after an update, upgrade, services patch, support fix or platform migration has been made to the Service.
- Third-Party Sites and Content. The Service may contain links to third-party websites, applications or features not owned or controlled by Project Partners (“Third-Party Sites”). If Project Partners has included these links in the Service, it provides them as a convenience only. The inclusion of these links is not an endorsement by Project Partners of any Third-Party Sites. In addition, the Service may also enable interactions between the Service and a Third-Party Site through applications that connect the Service, or your profile on the Service, with a Third-Party Site. Through Third-Party Sites Customer may be able to access content from third parties that Project Partners does not control and/or share Customer's Content with others. Customer agrees that Customer accesses Third-Party Sites entirely at Customer's risk and Project Partners shall have no liability for Customer's use of or access to Third-Party Sites and/or third party content. Project Partners reserves the right to disable links to any Third-Party Sites that Customer posts on the Service.
- Ownership of Customer's Content; Maintenance and Backup of Customer's Content. Customer retains all ownership and intellectual property rights in and to Customer's Content. Project Partners performs regular backups of Content for the purpose of recovery in the event of a failure in data centers. However, notwithstanding the foregoing, Customer is solely responsible for maintaining and backing up any Content that it uses with the Service. Customer, not Project Partners, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use such Content. Project Partners shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content that Customer uses with the Service.
If the version of the Service that Customer is granted rights to access and use is a pre-release or early access version, including its user interface, features and documentation (“Pre-Release Service”), then Customer acknowledges and agrees that such Pre-Release Service may not work the way a final version of the feature or Services will. Project Partners reserves the right, at any time without notice to Customer, to not release a commercial version of, or to change, any Pre-Release Service. Any such Pre-Release Service are confidential and proprietary to Project Partners and its suppliers. For five (5) years after Customer subscribes to the Pre-Release Service or the subsequent commercial version of the Service, whichever occurs first, Customer agrees not to disclose any Pre-Release Service to third parties or to use any Pre-Release Service other than for its internal business purposes in connection with Customer's use of the Service. Customer's duty to protect the confidentiality of any Pre-Release Service survives the termination of this Agreement. Any Pre-Release Service is provided “as-is,” “with all faults” and “as available.” Customer bears all risks associated with using any Pre-Release Service. To the maximum extent permitted by law, the PP Parties give no express warranties, guarantees or conditions relating to any Pre-Release Service. Customer may have additional rights under local laws that this Agreement cannot change. To the full extent permitted by law, Project Partners hereby disclaims any implied warranties or conditions, including, but not limited to, those of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, and satisfactory quality.
Trial Period Offers
Customer may receive a trial period offer for the Service. Customer's use of the Service during a trial period is subject to the terms of this Agreement. Project Partners provides the Service during the trial period on an “as is” basis and does not offer any warranties for such Service. At the end of the trial period, if Customer does not subscribe to the Service, Project Partners will consider the Service terminated and the provisions of Section 4.4 shall apply.
Project Partners and Customer shall treat the terms and conditions of, and the pricing under, this Agreement as confidential and shall not disclose them to any third party except to the extent required by any court, governmental body, or law or regulation. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.
- Limited Warranty. Project Partners warrants that the Service will substantially conform to the description of the Service contained in the applicable Project Partners user documentation. This limited warranty is subject to the following limitations:
- this limited warranty applies only during the Term, including any renewals thereof (“Warranty Period”);
- any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
- this limited warranty does not cover problems caused by accident, negligence, abuse or use of the Service in a manner inconsistent with this Agreement or the applicable user documentation, or resulting from events beyond BQE Software's reasonable control;
- this limited warranty does not apply if the Service has been modified, except by or at the direction of Project Partners;
- this limited warranty does not apply to problems caused by the failure to meet minimum system requirements or by the use of the Service with equipment, products or systems not specified in the Documentation; and
- this limited warranty does not apply to downtime or other interruption in access to the Service, or any other performance metrics that are addressed in an applicable SLA.
- Exclusive Remedies for Breach of Limited Warranty. If Customer notifies Project Partners in writing within the Warranty Period that the Service does not meet the limited warranty, then Project Partners will, at its option, either (a) return the amount paid by Customer for the Service during the (i) Term or (ii) twelve (12) months prior to delivery of such written notice to Project Partners, whichever is less, or (b) update such Service to make the Service substantially conform to the description in the applicable user documentation. These are Customer's sole and exclusive remedies, and Project Partners’ sole liability, for all breaches of any warranty specified in this Agreement, unless and to the extent other remedies are required to be provided under applicable law.
- DISCLAIMER OF OTHER WARRANTIES. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED IN SECTION 12.1, THE SERVICE IS PROVIDED “AS IS” AND THE BQE PARTIES PROVIDE NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. THE PP PARTIES DISCLAIM ALL IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USE OF TRADE.
WITHOUT LIMITING THE FOREGOING, (A) THE PP PARTIES HAVE NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) THE PP PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED OR THAT THE BQE PARTIES WILL CORRECT ALL SERVICE ERRORS; (C) THE PP PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER'S CONTENT WILL REMAIN PRIVATE OR SECURE; AND (D) THE PP PARTIES DISCLAIM ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF THE SERVICE OR OTHER THIRD PARTIES. CUSTOMER ACKNOWLEDGES THAT THE PP PARTIES DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE PP PARTIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
THE SERVICE IS DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE EXPRESS UNDERSTANDING THAT NONE OF THE PP PARTIES IS ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE OR SERVICES. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. THE PP PARTIES EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER'S USE OF THE SERVICE WILL SATISFY ANY STATUTORY, REGULATORY OR OTHER LEGAL OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS, INCLUDING BUT NOT LIMITED TO, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002 OR OTHER FEDERAL OR STATE LAWS, RULES OR REGULATIONS.
Limitation of Liability
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE PP PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER'S ORDER, WHETHER BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT CUSTOMER ACTUALLY PAID TO PROJECT PARTNERS FOR THE SERVICE UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM DURING THE (A) TERM OR (B) TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, WHICHEVER IS LESS.
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, IN NO EVENT SHALL ANY OF THE PP PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUES OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA OR DATA USE, OR LOSS OF BUSINESS OPPORTUNITIES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ANY OF THE BQE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. THE LIMITATIONS IN THIS SECTION 13 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS AGREEMENT. IF APPLICABLE LAW LIMITS APPLICATION OF THE PROVISIONS OF THIS SECTION 13, THE LIABILITY OF THE PP PARTIES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, THE PP PARTIES' LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 13 APPLY LIKEWISE TO EACH OF THE PP PARTIES' RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ASSOCIATES”).
During the Term and for three (3) years thereafter, Customer shall keep all usual and proper records relating to the Subscription(s) and Customer's use of the Service under this Agreement. Project Partners may request that Customer conduct an internal audit, and/or permit Project Partners or its agents to conduct an audit, of all use of the Service throughout Customer's organization, comparing the number and type of User Licenses in use by Customer to the number and type of User Licenses issued to and/or paid for by Customer. By requesting an audit, Project Partners does not waive its rights to enforce this Agreement or to protect Project Partners’ intellectual property by any other means permitted by law. If verification or self-audit reveals any unlicensed use, Customer must promptly pay any fees applicable to Customer's use of the Service in excess of Customer's rights. If material unlicensed use is found, Customer shall reimburse Project Partners for the costs Project Partners has incurred in verification and shall acquire the necessary additional rights to use the Service at single retail license cost within thirty (30) days. Customer agrees that Project Partners shall not be responsible for any of Customer's costs incurred in conducting or cooperating with any audit.
Customer agrees to indemnify and hold each of the PP Parties and their respective Associates (collectively, the “Indemnified Parties”) harmless, and at Project Partners’ option defend the Indemnified Parties, from and against any and all third-party claims, losses, liabilities, damages, lawsuits, proceedings, costs and expenses (including without limitation attorneys' fees and costs) (collectively, “Claims”) arising out of or relating to Customer's and/or its Users' (a) use of the Service, including but not limited to, any claims that any Content submitted to or transmitted through the Service from Customer's account infringes or violates a third party's intellectual, proprietary, privacy or publicity rights, or (b) breach or violation of this Agreement. If Customer is obligated to indemnify Project Partners and/or the other Indemnified Parties, Project Partners may, in its sole and absolute discretion, control the defense and disposition (including its possible settlement) of any Claim at Customer's sole cost and expense. Without limitation of the foregoing, Customer will not settle, compromise or in any other manner dispose of any Claim without the written consent of Project Partners. Customer's obligations under this Section will survive the termination or expiration of this Agreement.
MEDIATION AND BINDING ARBITRATION
Project Partners will make every reasonable effort to informally resolve any complaints, disputes or disagreements that Customer may have with Project Partners. If those efforts fail, Customer agrees that any complaint, dispute or disagreement Customer may have against Project Partners, and any claim that Project Partners may have against Customer, arising out of, relating to, or connected in any way with this Agreement, any purchases or other transactions or relationships with Project Partners, or Customer's use of or interaction with the Service and any related services or content (collectively, “PPTransactions or Relationships”) will be settled, first, by mediation to take place within thirty (30) days of the written notice of such dispute and, second, if the parties are unable to settle such dispute by mediation in such thirty (30)-day period, then by binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). You further agree to the following:
- The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between Customer and Project Partners (the “Arbitrator”).
- The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of this Agreement and/or these arbitration provisions in this Section 16, including but not limited to any claim that all or any part of this Agreement is void or voidable.
- The Arbitration shall be conducted in the English language and held either: (i) in Los Angeles County, California, U.S.A.; or (ii) at such other location as may be mutually agreed upon by Customer and Project Partners; or (iii) at Customer's election, if the only claims in the arbitration are asserted by Customer and are for less than $10,000 in aggregate, by telephone or by written submission.
- The Arbitrator (i) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (ii) shall honor claims of privilege recognized at law; and (iii) shall have authority to award any form of legal or equitable relief.
- The Arbitration can resolve only Customer's and/or Project Partners’ individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated.
- The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The prevailing party shall be entitled to recover its reasonable attorneys' fees and its share of the costs of the arbitration, as the Arbitrator determines. In no event will the Arbitrator have the authority to award punitive damages or any other damages expressly limited by this Agreement.
- Notwithstanding anything to the contrary contained in this Section 16, a party may seek equitable relief by court action before or after instituting arbitration, including, without limitation, seeking and obtaining temporary restraining orders, injunctions or other provisional, ancillary or equitable remedies, and the institution and maintenance of any such action shall not constitute a waiver of the right to arbitrate any controversy or claim.
- Notwithstanding the foregoing, Customer and Project Partners adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure with respect to any final Award in the Arbitration.
- CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER AND PROJECT PARTNERS ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPOSED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
- Project Partners may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Project Partners has given notice of such modifications and only on a prospective basis for claims arising from PP Transactions and Relationships occurring after the effective date of such notification.
- Notices. Except as otherwise provided in this Agreement, all legal notices to Customer shall be given in writing to any Customer address listed on the applicable Order, and all legal notices to Project Partners shall be given in writing to the address listed below. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier, or (c) five (5) business days after sent by registered or certified mail (or ten (10) days for international mail), return receipt requested, all fees prepaid. Termination of this Agreement or a Subscription initiated by a Customer should be directed to the Project Partners customer service contact. For clarity, orders, invoices and other documents relating to order processing and payment are not legal notices and may delivered electronically in accordance with Project Partners’ and Customer's standard ordering procedures. Project Partners also may give notice applicable to Project Partners’ customer base by means of a general notice on the Project Partners Software portal for the Service.
Project Partners, LLC
520 Purissima Street
Half Moon Bay, CA 94019
Attention: Legal Department
- Assignment. Customer may not assign this Agreement or any of Customer's rights or obligations hereunder without Project Partners’ prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties' respective successors, heirs, executors, administrators, personal representatives and permitted assigns.
- Severability. If any provision of this Agreement is held to be to be illegal, invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement shall remain in full force and effect.
- Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. Any waiver of any breach of this Agreement shall not constitute a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
- Limitations Period. Unless otherwise required by law, and except for actions for nonpayment or breach of Project Partners’ proprietary rights, any claim or cause of action (including any arbitration) arising out of or relating to this Agreement or any other PP Transactions or Relationships must be commenced within one (1) year after such claim or cause of action arose.
- Governing Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed and enforced in accordance with the internal laws of the State of California without regard to its conflict of laws principles, except that (a) if Customer is an entity of the U.S. Government, this Agreement shall be governed by the laws of the United States, and (b) if Customer is an entity of a state or local government in the United States, this Agreement shall be governed by the laws of such state. The Uniform Computer Information Transactions Act and the 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments shall not apply to this Agreement or Orders placed under it. The Service is protected by copyright and other intellectual property rights laws and international treaties.
- Jurisdiction. Subject to the arbitration provisions above, any action or proceeding arising out of or relating to this Agreement or any other PP Transactions or Relationships must be brought exclusively in the state and federal courts located in San Mateo County, State of California, USA, and Customer irrevocably consents to the personal jurisdiction of such courts and agrees that it is a convenient forum and that Customer will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise, and Customer agrees to waive any bond, surety or other security that might be required of any other party with respect thereto. The foregoing choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. If Customer is an entity of the U.S. Government or an entity of a state or local government, this Section does not apply and jurisdiction and venue will be determined by applicable law.
- Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting Project Partners’ or its suppliers' or licensors' intellectual property rights in the Service or either party's confidential information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
- Non-Exclusivity. This Agreement is non-exclusive to both Customer and Project Partners. Customer is free to enter into agreements to license, use or promote non-Project Partners products, software or services.
- Entire Agreement. This Agreement (including the information which is incorporated into this Agreement by written reference), any applicable SLA and the pricing and payment terms set forth in the applicable Order constitute the entire agreement concerning the subject matter hereof and thereof and supersede all prior or contemporaneous communications, representations, communication and understandings of the parties, written or oral, relating to such subject matter. It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other non-Project Partners document and no terms included in such purchase order or other non-Project Partners document shall apply to the Service ordered by Customer.
- Customer Consent to Partner Fees. When Customer places an Order for the Service, it may have the opportunity, at its sole discretion, to identify a Project Partners “Partner of Record” associated with its Subscriptions. By identifying a Partner of Record, directly or by authorizing a third party to do so, Customer consents to Project Partners paying certain fees to the Partner of Record. The fees are for pre- sales support to Project Partners and may also include post-sales support to Customer. The fees are based on, and increase with the size of, Customer's Order.
- Force Majeure. Neither party will be liable for any failure or delay in performance due to causes beyond either party's reasonable control, including but not limited to acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), explosion, power blackout, riots, strike, embargo, labor disputes, acts of civil or military authority, war, hostilities, terrorism (including cyber terrorism), electric, internet or telecommunications outage, or actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of the Service). This Section will not, however, apply to Customer's payment obligations under this Agreement.
- User ID. Customer agrees that it is responsible for protecting the confidentiality of any Project Partners User ID's or other authentication ID's associated with the Service or this Agreement.
- Government Regulation. Customer acknowledges that the Service may be subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Customer may not export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. Customer shall not and shall not allow any third party to remove or export from the United States or allow the export or re-export of any portion of the Service or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Service is further restricted from being used for: (i) terrorist activity, or (ii) the design or development of nuclear, chemical, or biological weapons or missile technology, without the prior permission of the U.S. government. The Service and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Service and Documentation by the U.S. government shall be governed solely by the terms of this Agreement.
- Modifications. Project Partners shall have the right, in its sole discretion and subject to Section 16(j), to add to, change or modify the terms of this Agreement at any time and to change, delete, discontinue or impose conditions on any feature or aspect of the Service, including, but not limited to, pricing, technical support options and other product-related policies, upon notice by any means Project Partners determines in its discretion to be reasonable, including posting information concerning any such change, addition, modification, deletion, discontinuance or conditions in the Service or on any Project Partners-sponsored website. Any use of the Service by you after Project Partners’ publication of any such changes shall constitute your acceptance of this Agreement as modified. Therefore, Customer should review this Agreement before using the Service and be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to this Agreement would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid this Agreement being deemed illusory or unenforceable.
- English Language Controls. The English language version of this Agreement controls.
- Natural Disaster. In the event of a natural disaster, Project Partners may post information or provide additional assistance or rights on www.projectp.com.
- Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between Customer and Project Partners. Each of Customer and Project Partners shall be responsible for paying for its own employees, including employment related taxes and insurance.
- Business Partners. Customer understands that Project Partners’ business partners, including any third-party firms retained by Customer to provide computer consulting services, are independent of Project Partners and are not Project Partners’ agents. Project Partners is not liable for not bound by any acts of any such business partner, unless the business partner is providing services as a Project Partners subcontractor on an engagement ordered under this Agreement.
- Headings. Section headings are included in this Agreement for convenience only and shall not be considered in interpreting this Agreement.