Pronet Cloud & Data Center Service Agreement,
Terms of Service & End User License Agreement
THIS SERVICE AGREEMENT (the “Agreement”), is made and entered into by and between Pronet Solutions Corporation (“Pronet”), a Texas corporation, and You, as defined in Your executed Pronet Cloud & Data Center Service Agreement, Your executed Pronet Cloud & Data Center Service Order Form and Purchase Agreement (“Order Form”) with Pronet, or any agreement between You and Pronet encompassing services described herein operating from any data center or cloud-based operation managed by Pronet (the appropriate agreement of the aforementioned agreements herein known as “Your Defining Reference Agreement”), or as addressed in any invoice delivered to You by Pronet pertaining to the services and/or software described herein. By using and/or accessing the services and/or software described herein, or upon Your payment of any invoice pertaining to the services and/or software described herein, You hereby agree to all terms and conditions contained herein. If You are entering this agreement on behalf of a company or other legal entity, You represent that You have authority to bind such entity to this agreement, in which case You shall refer to such entity.
Your use of the Pronet Cloud & Data Center Service is governed by this Agreement, the Pronet Responsible Computing and Acceptable Use Policy, and the terms of Your Defining Reference Agreement. When we use the term “Agreement” in any of Your Defining Reference Agreement, this Agreement, or the Pronet Responsible Computing and Acceptable Use Policy, we are referring collectively to all of them.
1. Pronet Cloud & Data Center Service
Subject to the terms and conditions of this Agreement, Pronet shall provide You with managed information system services, using a secure datacenter that provides physical and/or virtual server-based services and that may optionally include use of additional hardware or hardware components (whether leased or purchased) either onsite or at the datacenter (the “Pronet Cloud Service” or “Service” or “Services”) during the term of this Agreement. Pronet will provide online access to such managed information systems provisioned for Your use of the Service. Additionally, Pronet reserves the right to physically ship and/or electronically transfer Your data, encrypted or unencrypted, on a hard drive or other computer media or Internet connection between the secure datacenter and Your site as described herein and as necessary.
2. Fees, Billing, and Payment
You will pay monthly fees and other fees for the Service (the “Fees”) to Pronet or to Pronet’s authorized reseller in the amount and in the manner set forth in Your Defining Reference Agreement or as specified in any invoice delivered to You by Pronet pertaining to the Service, or as otherwise arranged between You and Pronet.
2.2 Monthly Commitment
You must maintain a Minimum Monthly Commitment Level (“MMCL”) of Service. The MMCL shall be defined as the dollar amount as specified within Your Defining Reference Agreement or as specified in any invoice delivered to You by Pronet pertaining to the services and/or software described herein. Should Your use of the Service drop below the MMCL during the contract term, You will be billed and are obligated to pay at minimum the MMCL fee as contained within Your Defining Reference Agreement or as specified in any invoice delivered to You by Pronet pertaining to the services and/or software described herein. Increases in service quantities may be made at any time as needed.
All payments to Pronet must be made in U.S. dollars by credit card, check, eCheck at http://pronetcorp.com, bank draft/ACH, or by wire transfer. The Fees exclude all applicable sales, use, withholding and other taxes, and You will be responsible for payment of all taxes (other than taxes based on Pronet’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees. You will make all payments of the Fees to Pronet free and clear of, and without reduction for, any taxes, fees or duties; any such taxes imposed on payments of the Fees to Pronet will be Your sole responsibility, and You will provide Pronet with official receipts issued by the appropriate taxing authority, or such other evidence as Pronet may reasonably request, to establish that such taxes have been paid. You will indemnify and hold Pronet harmless from any such taxes or claims relating to the payment, non-payment or underpayment of such taxes. Any portion of the Fees that is not paid when due will accrue interest at two and a half percent (2.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event Your Fees (as outlined in Section 2.1) have been increased from a previous month, You hereby agree to the new Fee arrangement or price schedule upon Your payment of Your increased Fees.
2.4 Unlimited Bandwidth Accounts
Bandwidth accounts classified or labeled with any description such as, but not limited to, “Unlimited”, “Unlimited Bandwidth”, “Unlimited Use”, “No Bandwidth Metering”, “Unmetered Bandwidth”, etc. (“Unlimited Bandwidth Accounts”), fall within acceptable use restrictions as determined by Pronet and as described herein. Unlimited Bandwidth Accounts may not exceed a data transfer rate of fifteen (15) terabytes (TB) in one (1) month. If You have an Unlimited Bandwidth Account and Your data growth rate exceeds this value, Pronet reserves the right to either terminate the Service or increase Your Fees for the Service. The initial term length for Unlimited Bandwidth Accounts is three (3) years, after which the commitment renews as per the terms of Section 7 of this agreement.
All payments and payments owed are final and there are no refunds.
2.6 Changes in Power Costs
You acknowledge that Pronet receives its power feed from a third party power utility company, with rates that are subject to change without notice. Pronet reserves the right to pass on any such increases in power costs to You. In addition, Pronet reserves the right to pass on to You any carbon surcharges or taxes imposed on Pronet as a result of Pronet’s provision of the Services.
3. Pronet Responsibilities
3.1 Data Security
Pronet will provide the Service to You on a “commercially reasonable efforts” basis. Pronet will implement reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery.
3.2 Data Privacy and Confidentiality
Pronet agrees to hold confidential all Your data in its possession exercising the same degree of care that a reasonable and careful company would exercise with similar data of its own. Pronet will limit access to Your data only to employees, contract labor, and subcontractors of Pronet, or to any affiliate or successor to the business or assets of Pronet; provided that in the event that Pronet is made aware of a potential violation of the terms of any law, any regulation, or this or any end user Agreement, Pronet may take, but is under no obligation to take, such investigative and remedial measures as each deems in its sole discretion to be appropriate, including copying and sharing data with appropriate legal authorities, providing access to data and activity information with legal authorities, removal of violating data without notice, denial or suspension of access and services, or any such other remedies or actions as may be otherwise requested by legal authorities or allegedly aggrieved parties, even in the absence of subpoena or compulsion by government authority.
If You purchased support with the Service, then Pronet will provide support to you during normal business hours, which are defined as 8:00 a.m. – 5:00 p.m., Monday through Friday, United States central time, excluding federal holidays in the United States and observed Pronet holidays. You may request support both during and outside normal business hours by opening a support ticket via the Pronet website at http://pronetcorp.com/support or by calling a Pronet authorized support agent.
You agree to and accept Pronet’s incident response time expectations, Your remedies, and the method for obtaining SLA credits as outlined in the Pronet Service Level Agreement (SLA) and listed on the Pronet website at http://pronetcorp.com/terms.
You acknowledge that in the event You experience trouble with the Service, You are responsible for on-site cooperative testing with Pronet’s authorized support agent(s) to assist in the diagnosis of the trouble. Pronet is not responsible for end-user support of issues not directly related to the Service. This includes (but is not limited to) Your operating systems, Your equipment, or Your application support. Pronet reserves the right to bill You at current hourly rates for configuration requests that are not required to provide the Service outlined herein, and You hereby agree to pay Pronet for any such fees. Additionally, Pronet is not liable for any data errors, and is not liable for any disruption of the Service no matter what the root cause.
4. Your Responsibilities
You will perform regular use of Service as outlined herein. If You purchased support with the Service, You will report any errors in Your use promptly to Pronet as outlined in Section 3.3.
Use of the Service requires compatible devices, Internet access, and compatible software; may require periodic updates; and may be affected by the performance of these factors. As part of the Service, You may from time to time receive updates to software application(s) from Pronet which may be automatically or manually downloaded and installed to Your devices or computers or servers. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the software application(s). You agree that Pronet may deliver such updates to You as part of the Service and You shall receive and install them as required. The latest version of required software is recommended to use the Service and may be required for certain features. You agree that meeting these requirements, which may change from time to time, is Your responsibility.
You are responsible for purchasing, obtaining, and remaining compliant with any and all hardware and hardware warranties as per the hardware manufacturer’s terms for any hardware that may be used with or required for use of the Service.
You will arrange for and maintain Internet communication services for use of the Service. You are responsible for any communication costs associated with your Internet communications services.
You are responsible for purchasing, obtaining, and remaining compliant with any and all licensing as per the software manufacturer’s licensing terms for any software that may be used with or required for use of the Service.
You agree that You shall not place any data on the servers of the Service that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statue, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. You shall defend, indemnify and hold Pronet harmless against any third party claim, action, suit or proceeding alleging any breach of the covenants contained herein.
You acknowledge that Pronet is not responsible or liable in any way for any data provided by You and has no duty to pre-screen such data. However, Pronet reserves the right at all times to determine whether data is appropriate and in compliance with this Agreement, and may pre-screen, move, refuse, modify and/or remove data at any time, without prior notice and in its sole discretion, if such data is found to be in violation of this Agreement or any known laws, or is otherwise objectionable.
5. Security and Data Encryption
The Service may provide mechanisms for You to encrypt Your data using a personal, private encryption key. For security purposes, such encryption is one-way encryption, and encrypted data is designed to only be decrypted by You using Your encryption key. Pronet is under no obligation to maintain records of Your password(s) giving access to the Service and/or Your encryption key(s), and it is Your sole responsibility to choose Your encryption methods and to maintain records of Your password(s) and encryption key(s). Pronet will not be responsible and will not incur any liability arising from the loss or use of Your passwords(s) and/or encryption key(s). Pronet will not be responsible to You for unauthorized access to Your data or the unauthorized use of the Services unless the unauthorized access or use results from Pronet’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of Yours, any person to whom You have given access to the Services, and any person who gains access to Your data or the Services as a result of Your failure to use reasonable security precautions, even if such use was not authorized by You.
6. Data Deletion Requests
You may request data to be deleted or removed from the Service. You must provide authorization from an authorized representative as designated in Your Defining Reference Agreement, and once data is deleted, a confirmation that such deletion has taken place will be delivered to the representative.
7. Term and Termination
This Agreement shall have the initial term as set forth in Your Defining Reference Agreement or signed eQuote unless otherwise specified herein. In the event You have previously used or paid Fees for, or are currently using or paying Fees for, the Service, and it has also been determined that Your initial term has not been defined herein, in Your Defining Reference Agreement, eQuote, or in any other arrangement or agreement between You and Pronet, Your initial term will be defined as one (1) year following the date of either Your most recent payment of the Fees or Your most recent access or use of the Service, whichever is later. The term shall automatically renew for the same period as specified in Your Defining Reference Agreement at the end of the initial term and thereafter, unless You notify Pronet, in writing at least ninety (90) days prior to the end of the then current term of Your intention to not to renew this Agreement. Pronet or any Pronet certified reseller reserve the right to modify the price schedule for the Service at any time. Pricing for any renewal term shall be at the price as set forth on the most current price schedule in effect upon the renewal date.
A party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure the breach within ninety (90) days after receiving written notice thereof. Pronet may also terminate this Agreement, effective immediately upon written notice to You, if: (a) You breach any provision in Section 9.2; or (b) You fail to pay any portion of the Fees when due within ten (10) days after receiving written notice from Pronet that payment is past due. You may also terminate this Agreement at any time during the term by providing ninety (90) days advance notice to Pronet, in writing, of Your intention to terminate this Agreement, and by immediately paying all amounts due under this Agreement for the remainder of the term. Failure to immediately pay all amounts due under this Agreement for the remainder of the term will forfeit Your written intention to terminate.
7.3 Effects of Termination
Upon termination or expiration of this Agreement for any reason, any amounts owed to Pronet under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and You must promptly discontinue all use of the Service, erase any and all copies of any software associated with the Service from Your systems and certify in writing to Pronet that You have fully complied with these requirements. Additionally, upon termination or expiration of this Agreement, all Your data will be permanently deleted from the Pronet Cloud Service, without any obligatory notice by Pronet to You.
Additionally, if any hardware (whether leased by You or owned by Pronet) resides on Your premises, You hereby grant Pronet the right to obtain possession of such hardware without restriction and at Pronet’s sole discretion, which may include onsite collection of such equipment by Pronet or a designated Pronet affiliate or may include prompt delivery of such equipment by You to Pronet’s desired physical address of choice, which also includes Your obligation to pay any and all shipping costs for such delivery per Pronet’s desired shipping method and carrier.
7.4 IP Addresses
During the term of this Agreement, You agree that Pronet may, as it determines necessary, make modifications to DNS records, zones, and Internet Protocol (“IP”) Addresses on any DNS servers managed or operated by Pronet in connection with the Services. Additionally, upon termination or expiration of this Agreement, Pronet may permanently delete any DNS records, zones, and IP Addresses on any DNS servers managed or operated by Pronet in connection with the Services, without any obligatory notice by Pronet to You. Upon expiration or termination of the Agreement, You must discontinue use of the Services and relinquish use of any and all IP addresses and/or server, host, or CNAME names or records assigned to You by Pronet in connection with Services, including pointing the DNS name servers for Your domain name(s) away from Pronet’s DNS name servers, and You must certify in writing to Pronet that You have fully complied with these requirements.
7.5 Disposition upon Termination
You acknowledge that upon the expiration or termination of this Agreement, any attempt to access the servers of the Service in connection with any of Your data for whom You have not paid all fees, or for whom the License has expired or terminated, is prohibited and unauthorized.
Additionally, any attempt to physically alter any hardware (whether leased by You or owned by Pronet) that resides on Your premises during the term of this Agreement or upon the expiration or termination of this Agreement, including damaging the hardware, removing or adding hardware or hardware components, modifying or uninstalling software, or making any modifications to the hardware in any form or fashion without prior approval from and unless instructed by Pronet is prohibited and unauthorized.
7.6 Failure to Comply & Unauthorized Activity
Pronet may pursue criminal investigation and/or legal action, including the pursuit of punitive and/or restorative damages, against You if it is determined that, but not limited to: (a) prohibited or unauthorized activity is attempted by You as described herein; (b) unlicensed use of software or the Service is attempted by You as described herein; (c) restricted use is violated by You as described in Section 9.2; or (d) You fail to comply with Your obligations in Sections 7.3 and 7.4 immediately, as determined by Pronet.
Sections 7.3 (“Effects of Termination”), 7.4 (“IP Addresses”), 7.5 (“Disposition upon Termination”), 7.6 (“Failure to Comply & Unauthorized Activity”), 7.7 (“Survival”), 8 (“Warranty and Disclaimer”), 9.2 (“Use Restrictions”), 10 (“Liability Limitation”), and 11 (“General”) will survive termination or expiration of this Agreement for any reason.
8. Warranty and Disclaimer
8.1 Services Warranty
Pronet’s sole and exclusive warranty is that the Service provided under this Agreement shall be performed in conformity with the standard practices in the industry. Notwithstanding the foregoing, the security mechanisms implemented by Pronet have inherent limitations and You are solely responsible for determining that this mechanism sufficiently meets Your security and operational needs. TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PRONET DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE SERVICE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND PRONET SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. It is Your responsibility to maintain appropriate alternate backup of Your information and data.
THE EXPRESS WARRANTIES IN THIS SECTION 8 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE AND SOFTWARE (as defined in Section 9.1), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 8.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
PRONET SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE SERVICE. THE FOLLOWING DISCLAIMERS ARE SUBJECT TO THIS EXPRESS WARRANTY.
PRONET DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME PRONET MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PRONET AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, PRONET AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE (as defined in Section 9.1) PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED.
PRONET DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND PRONET DISCLAIMS ANY LIABILITY RELATING THERETO.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES AND/OR COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
9. Pronet Software
9.1 Business Continuity License
If You purchased business continuity licensing with the Service, as part of the provision of the Service, certain third-party software (the “Business Continuity Software” or “Software”) may be required to be installed on Your system(s) and in Your environment. Subject to the terms and conditions of this Agreement, You may be granted a limited, non-exclusive, non-transferable license to use the Software (in executable code form) as specifically configured by Pronet solely in connections with Pronet’s provision of the Service. You understand and agree that at the end of Your license subscription period or at the termination of this Agreement, all functionality of the Software will time out and cease to operate, and Pronet shall have no responsibility to provide service or support for the Software. All rights not specifically granted to You herein are expressly reserved by Pronet.
9.2 Use Restrictions
You agree not to: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer the Service or Software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (e) use or access the Service or Software via issuing commands from a command line interface (CLI); (f) use the Service or Software to process data or provide any service bureau activity for any third party; or (g) otherwise use the Service, or use or copy the Software, except as expressly allowed under Section 9.
10. Liability Limitation
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY BY SERVICE PROVIDERS. TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL PRONET AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF PRONET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE; (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE, SOFTWARE, OR THIS AGREEMENT. PRONET AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS ALSO SHALL NOT HAVE ANY LIABILITY FOR ANY PROGRAMS OR DATA USED WITH THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROGRAMS OR DATA OF ANY KIND OR THE COSTS OF RECOVERING SUCH DATA. PRONET’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICE AND SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF TEN (10) PERCENT OF THE TOTAL FEES PAID TO PRONET BY YOU DURING THE PERIOD OF ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE, AS DETERMINED BY PRONET, ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. YOU ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PRONET WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
11.1 Proprietary Rights
The Software and all worldwide Intellectual Property Rights therein, are the exclusive property of Pronet or their manufacturers. All rights in and to the Software not expressly granted to You in this Agreement are reserved by Pronet or their manufacturers. You will not remove, alter, or obscure any proprietary notices (including copyright notices) of Pronet or third-party manufacturers on the Software.
You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement (including Your licenses with respect to the Software) to any third party without Pronet’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. Pronet may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of business, and Pronet may transfer Your Confidential Information as part of any such transaction. Pronet may use third party service providers to perform all or any part of the Service.
All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), by certified or registered mail, (postage prepaid and return receipt requested), or by email (read receipt confirmed and documented or with email response from recipient that indicates acknowledgement of receipt) to the other party at the address(es) set forth beneath such party’s signature or as indicated in Your Defining Reference Agreement or other corresponding address as determined by Pronet, and will be effective upon receipt or, in the case of mail, three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
11.4 Governing Law and Venue
This Agreement will be governed by the laws of the State of Texas, without reference to its conflicts of law principles. Any action or proceeding arising out of a breach by You of Section 9.2 may be brought in a federal court in the Southern District of Texas, USA or in state court in Harris County, Texas, USA and each party irrevocably submits to the jurisdiction and venue of those courts.
11.5 Dispute Resolution
Subject to Section 11.4, any action or proceeding arising from or relating to this Agreement shall be finally settled by arbitration before American Arbitration Associate (the “AAA”) pursuant to its Commercial Arbitration Rules (the “Rules”). The arbitration shall be before one (1) arbitrator appointed by the AAA pursuant to the Rules. The parties agree that arbitration must be initiated within three (3) months after the claimed breach occurred and that the failure to initiate the arbitration within the three-month period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail, return receipt requested, to all parties and to AAA. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a submission agreement, in a form provided by AAA, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration hearing. Any arbitration instituted under this subsection shall take place in Harris County, Texas, USA.
You agree to defend, indemnify and hold Pronet, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors (the “Pronet Indemnitees”) harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any data You store, submit, post, transmit, or otherwise make available through the Service; (b) Your use of the Service; (c) any violation by You of this Agreement; (d) any action taken by Pronet as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; (e) Your violation of any rights of another; (f) Your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Pronet Acceptable Usage Policy, or violation of Section 11.11 (Export Control) of this Agreement; or (g) any usage of Your account, whether or not such usage is expressly authorized by You.
This means that You will pay the cost of defending the claim (including reasonable attorney fees) and any damages, awards, fines, or other amount that are imposed on the Pronet Indemnitees as a result of the claim. This also means that You cannot sue the Pronet Indemnitees as a result of Pronet’s decision to remove or refuse to process any information or data, to warn You, to suspend or terminate Your access to the Service, or to take any other action during the investigation of a suspected violation or as a result of Pronet’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement.
You acknowledge that You are responsible for all use of the Service involving Your account, that this Agreement applies to any and all usage of Your account, and that Your obligations under this subsection include claims arising out of the acts or omissions of Your employees, any other person to whom You have given access to the Service, and any person who gains access to the Service as a result of Your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by You. If You resell the Service, the grounds for indemnification stated above also include any claim brought by Your customers or end users arising out of Your resale of the Service.
We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to You. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this subsection as we incur them.
The parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Software contains valuable trade secrets and proprietary information of Pronet or the Software manufacturers, that any actual or threatened breach of Section 9.2 will constitute immediate, irreparable harm to Pronet for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach and Pronet is entitled to such relief without the need to post a bond.
All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver or any other provision or of such provision on any other occasion.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Section 8.
11.10 Force Majeure
Pronet will not be responsible for any delays or failures caused by events, occurrences, or causes beyond the control of Pronet, as determined by Pronet, including without limitation, acts of God, natural disasters, fires, explosions, terrorist attacks, acts of utility providers, or any other possible hindrance which impairs Pronet’s provision of the Service. Additionally, Pronet will not incur any liability on the account of any loss or damage resulting from any delay or failure to perform all or any part of the Agreement if such delay or failure is caused by such aforementioned events, occurrences, or causes, or as otherwise determined by Pronet. You acknowledge that Your inability to meet financial obligations from any claim of force majeure will be not be accepted, and all fees payable to Pronet will remain outstanding until paid by You to Pronet in full.
11.11 Export Control
Use of the Service and Software, including transferring, posting, or uploading data, software or other content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to any entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software and Service, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to use the Service or Software to upload or store any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
11.12 No High Risk Use
You may not use the Service in any situation where failure or fault of the Service could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Service in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
11.13 Electronic Contracting
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain Your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
This Agreement may be amended by Pronet, and such amendments shall be immediately in effect upon Pronet’s publication of the new Agreement on its website at http://pronetcorp.com/terms/pronetcloud (“the Online Agreement”). Any version of the Online Agreement shall assume that the terms “You” and “Your” as contained herein shall carry the same definitions as “Subscriber” and “Subscriber’s”, respectively, as defined in Your Defining Reference Agreement or as determined by Pronet. Additionally, the Online Agreement may not enlist specifics as outlined in Your Defining Reference Agreement; however, the Online Agreement shall carry the same effect as having Your Defining Reference Agreement incorporated. It is Your responsibility to regularly review the Online Agreement, and Your continued use of or payment for the Service described herein indicates that You agree to all amendments and are fully bound to the Agreement, including any and all amendments therein.
11.16 Entire Agreement
This Agreement, and any exhibits attached to Your Defining Reference Agreement constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The terms on any purchase order or similar document submitted by You to Pronet will have no effect.