1. ACCESS TO PURCHASED SERVICES
1.1. Provision of Purchased Services. ProScheduler will make the Services available to You pursuant to this Agreement and the applicable Order Forms and will provide Our standard support for the Purchased Services to You at no additional charge and/or upgraded support if purchased. We will use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall schedule to the extent practicable during weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific Standard Time), and (ii) any unavailability caused by circumstances beyond Our control, including, for example, an act of God, act of government, civil unrest, act of terror, Internet service provider failure, telecommunications provider failure, or a Non-ProScheduler Application.
1.2. Connectivity, Hardware and Software Requirements. You must have a high-speed connection, hardware and software that are compatible with the Purchased Services, as set out in the Documentation, Exhibit E; System Requirements. None of these things are Our responsibility.
1.3. New Service Releases. We regularly upgrade and update the Purchased Services. This means that the Purchased Services are continually evolving. Some of these changes will occur automatically, while others may require You to schedule and implement the changes. The changes may also mean that You need to upgrade Your equipment or software in order to make efficient use of the Purchased Services.
2. CONDITIONS OF USE.
The Purchased Services provided to you are non-exclusive, non-transferable and are for Your internal business use ONLY. Your right to use the Purchased Services is conditional upon the following. YOU MAY NOT:
2.1. Access or modify Our code or system in any way that would put Our solution out of compliance with state or federal laws or regulations.
2.2. Transfer to any other person any of its rights to use the Services;
2.3. Sell, Rent or Lease the Services;
2.4. Make the Purchased Services available to anyone who is not an “Authorized User”;
2.5. Create any derivative works based upon the Services or Documentation;
2.6. Copy any feature, design or graphic in, or reverse engineer the Services;
2.7. Access the Purchased Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Customer is an employee of Our competitor;
2.8. Use the Purchased Services in a way that violates any criminal or civil law;
2.9. Load test the Purchased Services in order to test scalability; or,
3. YOUR DATA
3.1. You must provide all data for use in the Purchased Services. You are solely responsible for the content and accuracy of Your Data.
3.2. Your Data belongs to You; We make no claim to any right of ownership of it.
3.3. You must provide any notices and obtain any consents related to use of the Purchased Services and Our provision of such services, including those related to the collection, use, processing, transfer and disclosure of personal information.
3.4. We must keep Your Data confidential in accordance with Section 9 (Confidentiality) of this Agreement.
3.5. We must use the Your Data strictly as necessary to carry out obligations under this Agreement, and for no other purpose. However, We may observe and report back to You on Your usage of the Purchased Services, and make recommendations for improved usage of the Purchased Services; and
3.6. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
3.7. We reserve the right to remove or disable access to any Your Data that violate any criminal or civil law, including data that violates privacy rights or constitutes an infringement of intellectual property or other proprietary rights. We shall have no liability to You in the event that We take such action.
3.8. Storage period of Your Data. Data used for forecasting and reports is stored for 24 months.
4. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
4.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
4.2. Our Warranties. We warrant that: (i) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (ii) We will not materially decrease the overall security of the Purchased Services during a subscription term and (iii) the Purchased Services will perform materially in accordance with the applicable Documentation. However, We have no warranty obligations for a version of the Purchased Services that has passed its end-of-life date, problems in the Purchased Services caused by any third party software or hardware, by accidental damage or by other matters beyond Our reasonable control.
4.3. Remedies. If the Purchased Services do not function substantially in accordance with the Documentation, We must, at Our option, either (i) modify the Purchased Services to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet Customer’s requirements. If neither of these options is commercially feasible, within thirty (30) calendar days of Notice, either party may terminate this Agreement and the relevant Order Form and any other statements of work issued under this Agreement, in which case We shall refund to You all fees pre-paid to ProScheduler under the relevant Order Form for unused Purchased Services.
4.4. Infringement. If the normal operation, possession or use of the Purchased Services by Customer is found to infringe any third-party U.S. intellectual property right or We believe that this is likely, We must, at our option, either (i) obtain a license from such party for the benefit of You; (ii) modify the Purchased Services so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Order Form under this Agreement, in which case We shall refund to Customer all fees pre-paid to ProScheduler under the relevant Order Form for unused Purchased Services
4.5. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
5. TERM AND TERMINATION
5.1. Term of Agreement. This Agreement commences on contract execution date and continues until all subscriptions hereunder have expired or have been terminated.
5.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of nonrenewal at least ninety (90) days before the end of the relevant subscription term. ProScheduler has the right to increase prices in this agreement without further notice every 1st of January. Any such pricing increase will not exceed 3% of the pricing for the applicable Purchased Service, unless the pricing in the relevant Order Form was designated as promotional or one-time.
5.3. Termination. Either party may terminate rights granted under a particular Order Form if the other breaches any material term of the Order Form (including a material term of this Agreement insofar as it applies to the Order Form) and the breach is not cured within thirty (30) days of written notice. In the circumstances that Customer has breached a material term of the Agreement, instead of terminating rights granted to a Customer under an Order Form, upon providing Customer with at least thirty (30) days written notice, ProScheduler may suspend the provision of Purchased Services to Customer for a period of up to forty-five (45) days. At any time during that period, ProScheduler may terminate the rights granted to a Customer. Either party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of this agreement will include termination of the Statement Of Work and any Service Orders.
5.4. Transition Period. Upon termination of this agreement (separation for cause), Supplier will reasonably cooperate in the orderly wind-down of Purchased Services being terminated. The transition for Purchased Services will not exceed 120 days, unless the parties agree in writing to a shorter or longer period. During the Transition Period, the parties will continue to be bound by and perform in accordance with this Agreement. During the Transition Period, We will cooperate with You, and Your agents, contractors and third parties.
5.5. Refunds or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 5.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by ProScheduler in accordance with Section 5.3 (Assignment), You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to ProScheduler for the period prior to the effective date of termination.
5.6. Your Data Portability and Deletion. Upon request by You made within sixty (60) days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. We will charge You for work related to the export of Your Data according to Our hourly rates. After that sixty (60) day period, unless otherwise agreed to between the parties, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
5.7. Surviving Provisions. The Sections titled "Fees and Payment for Purchase Services," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Portability and Deletion of Your Data," "Who You Are Contracting With, Notices, Governing Law and Jurisdiction," and "General Provisions" will survive any termination or expiration of this Agreement.
6. NOTICES, GOVERNING LAW AND JURISDICTION
6.1. General. You should direct notices to:
ATTN: Chief Partnership Strategy Officer
1501 Broadway, 12th floor
New York, NY 10036
6.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after confirmed mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
6.3. Agreement to Governing Law and Jurisdiction. This Agreement will be governed by the laws of the state of Illinois and United States Federal Law. The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in Cook or Dupage County, State of Illinois for any claim relating to this Agreement.
7. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE PURCHASED SERVICES AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS AND FOR THE USE AND RESULTS OF THE PURCHASED SERVICES. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO PROSCHEDULER UNDER SUCH RELEVANT ORDER FORM DURING THE 12-MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESSED PART OF THE BARGAIN BETWEEN PROSCHEDULER AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO PROSCHEDULER. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF PROSCHEDULER’S INTELLECTUAL PROPERTY RIGHTS, OR A BREACH OF SECTION 11 OF THIS AGREEMENT, OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD-PARTY CLAIMS, OR IN CONNECTION WITH CUSTOMER BREACH OF ANY PAYMENT OBLIGATION UNDER THIS AGREEMENT.
The Purchased Services and Documentation contain valuable trade secrets that are the Sole Property of ProScheduler.
You agree to use reasonable care to prevent other parties from learning of these trade secrets. Customers must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software, Documentation and Work Product.
Your Data may include valuable trade secrets that are Your sole property. ProScheduler will take reasonable care to prevent other parties from learning of these trade secrets.
As used herein, the term “Confidential Information” shall include, but shall not be limited to, all information, documentation and devices belonging to the You and ProScheduler, and any of Our respective affiliates or subsidiaries, or any third-party that disclosed such information to either party or Our respective affiliates or subsidiaries in confidence, which either party, or any of their respective affiliates or subsidiaries, discloses or makes available to the other party in writing or otherwise as a result of or relating to any meetings, discussions or documents including, but not limited to, any technical data, supplier information, contracts, intellectual property, methods, concepts, recording, partners, financing arrangements, business models, business information, research, products, services, markets, software developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing, sales, finances, ideas, prices, project descriptions, drawings, specifications, budgets and estimates, financial and accounting information, personnel information, identification of customers and related customer data, plans, trade secrets or know-how relating generally to either party’s business or the business of their affiliates.
The receiving party shall hold the Confidential Information in strict confidence and exercise the same degree of care to protect the confidentiality of the Confidential Information disclosed to it as it uses to protect its own Confidential Information, disclosing only to its own employees, agents and independent contractors who have a legitimate need to know such information for the sole purpose of performance of this agreement, and who are subject to a similar confidentiality obligation to the receiving party, but in all events shall use at least a reasonable degree of care. The receiving party shall not, reproduce or otherwise make use any of the Confidential Information, or any portion thereof, for the receiving party’s own benefit, or for the benefit of any third-party, for any purpose other than performing under this agreement.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by ProScheduler. We will defend You and against any claim, demand, suit or proceeding made or brought against You by a third-party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third-party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give ProScheduler written notice of the Claim Against You, (b) give ProScheduler sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give ProScheduler all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may, in Our discretion and at no cost to You, (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 4.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a ProScheduler Application or Your breach of this Agreement.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third-party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third-party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify ProScheduler from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided that We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not unilaterally settle any Claim Against Us unless it unconditionally releases ProScheduler of all liability), and (c) gives You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
10. GENERAL PROVISIONS
10.1. Export Compliance. The Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S.- embargoed or in violation of any U.S. export law or regulation.
10.2. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and ProScheduler regarding Your use of supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
10.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, ProScheduler will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct or indirect ownership of more than 50% of the voting interest of the subject entity.
11.2. “Agreement” means this Master Subscription Agreement.
11.3. “Authorized User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third-parties with which You transact business.
11.4. “Beta Services” means Our services that are not generally available to customers.
11.5. “Documentation” means Our user guides, documentation and other documentation provided electronically by ProScheduler for use with the Purchased Services, as periodically updated.
11.6. "Non-ProScheduler Applications" means a Web-based or offline software application that is provided by You or a third-party and interoperates with Our Service, including, for example, an application that is developed by or for You.
11.7. “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda or supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
11.8. “Services” means the products and services that are ordered by you under a free trial or an Order Form and made available by Us, as described in the documentation. “Services” do not include Non-ProScheduler Applications.
11.9. “Purchased Services” means Services that You or Your Affiliate Purchased under an Order Form and made available online by Us, as distinguished by those pursuant to a free trial.
11.10. “Subscription Term” means the period of time during which ProScheduler is required to provide Customer with the Purchased Services.
11.11. “We”, “Us” or “Our” means ProScheduler Inc, with a principal office located at 1501 Broadway, 12th floor, New York, NY 10036.
11.12. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
11.13. “Your Data” means information submitted by You, including Your source code and electronic data or data generated by Your use of Our services, including call recordings and call data.