License Agreement

PLEASE READ THIS AGREEMENT CAREFULLY. By agreeing to the terms and by use of the Service, Customer agrees to comply with all of the terms and conditions set out in this Agreement.

These Terms and Conditions (“Agreement”) govern the use of the ProEst multitenant web application (“Service”) that is made available by ProEst (“Provider”).  This Agreement represents the whole agreement and understanding between Provider and the individual or entity who subscribes to the Service (“Customer” or “you”, collectively with Provider referred to as “Parties”).

1. License Grant & Restrictions.  Provider hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Service, solely for its own internal business purposes, subject to the terms and conditions of this Agreement.

Customer agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service; (ii) modify or make derivative works based upon the Service; or (iii) reverse engineer the Service.

Customer will not: (i) knowingly send or store infringing, obscene, libelous or otherwise unlawful or tortious material to the Service; (ii) knowingly send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, or programs to or from the Service; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its systems or networks; or (v) use the Service in violation of applicable law.

2. Term.  The term of this Agreement shall commence on the execution date and shall continue for a one year period from that date.

3. Customer Responsibilities. Customer is responsible for all activity occurring under Customer user accounts and will abide by all applicable laws, treaties and regulations in connection with its use of the Service. Customer is also responsible for safeguarding its Subscriber ID and password from any unauthorized use.  In no event will Provider be liable for the unauthorized use or misuse of your subscriber id or password.

4. Customer Data.  Customer Data means any data, details, figures, statistics, or any other information provided by Customer for use in the Service.  Provider does not own the Customer Data. Customer Data is Customer’s proprietary and confidential information and will not be accessed, used or disclosed by Provider except for the limited purpose of supporting Customer’s use of the Service. Customer has sole responsibility for the accuracy, legality, reliability, and intellectual property ownership to use the Customer Data.

5. Ownership. Provider owns all proprietary rights, title, interest, methodologies, specifications, documentation, techniques, codes and materials used in the development of the Service.

6. Third Party Technology and Services.  Provider reserves the right to use third-party technology and services in the development, support, maintenance, upgrade, enhancement, and management of the Service. Provider makes no warranty of any kind that the third-party technology and service, or any products or results of the use thereof, will meet customer’s or any other person’s requirements; operate without interruption; achieve any intended result; be compatible or work with any software, web browser, system or other services except if and to the extent expressly set forth in the mutually agreed upon specifications; or be secure, accurate, complete, free of harmful code or error free.

7. Third Party Data.  Provider may make available within the Service third-party data for Customer’s voluntary use.  Provider makes no warranty of any kind regarding the third-party data’s freshness, accuracy, quality, and completeness.  Customer agrees to the use the data at its own risk.

8. Downtime.  While Provider will do everything in its power to keep the Service up and running with minimal interruptions in service, Provider cannot guarantee that the Service will never be subject to periods of downtime and assume no responsibility for any and all business losses as a result of the site being unavailable for a period of time.

Provider takes no responsibility for, and will not be liable for any loss of data, information, business or financial profit, both potential and actual as a result of the Service being compromised through attacks involving malware, trojans, viruses, worms and other malicious attacks. Nor will Provider be held responsible for any site downtime as a result of these attacks.

9. Scheduled Maintenance.  From time to time, operation of the Service may be interrupted by scheduled maintenance such as software updates.  Provider will try to schedule maintenance during times when it is anticipated that Customer use of the Service is lower than normal. Provider may also need to be able to do emergency maintenance and/or suspend access to the Service where, in its reasonable discretion, it determines the need to do so.  When possible, Provider will offer advance notice of a scheduled maintenance to Customer.

10. Privacy. Provider’s privacy policy is available on Provider’s website. Provider may modify this policy in its reasonable discretion from time to time with notice to Customer.

11. Charges and Payment of Fees. Customer will pay all fees and charges in accordance with the terms contained in the Order Form.

12. Billing and Renewal. Customer will pay Provider in advance for use of the Service.  Provider’s fees are exclusive of all taxes, levies, or duties.

13. Termination for Cause. Any breach of Customer’s payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. Provider may terminate this Agreement, Customer account, or Customer’s use of the Service if Customer commits a material breach of this Agreement or otherwise fails to comply with this Agreement, and such breach has not been cured within ten (10) business days after notice of such breach.

14. Mutual Indemnification. Customer will indemnify, defend and hold Provider, and each such party’s affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with: (i) a claim by a third party alleging that use of the Customer Data infringes the Intellectual Property Rights of a third party; provided in any such case that Provider (a) promptly gives Customer written notice of the claim; (b) gives Customer sole control of the defense and settlement of the claim; and (c) provides Customer all available information and assistance.

Provider will indemnify, defend and hold Customer and Customer affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with: (i) a claim by a third party alleging that the Service directly infringes an Intellectual Property Right of a third party; provided that Customer (a) promptly gives written notice of the claim to Provider; (b) gives Provider sole control of the defense and settlement of the claim; and (c) presents Provider with all available information and assistance. Provider will have no indemnification obligation, and Customer will indemnify Provider.

15. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

16. DISCLAIMER.  Except as set forth herein, the service is provided and licensed “as is” without warranty of any kind, either expressed or implied, including, but not limited to the implied warranty of merchantability, non-infringement and fitness for a particular purpose.  Provider does not guarantee that the use of the service will not be interrupted or error free or that the services are compliant with any specific data protection laws or privacy laws applicable to you. The foregoing warranty is exclusive and in lieu of all other warranties, express or implied, including warranties of fitness for a particular purpose, noninfringement, and merchantability.

17. LIMITATION OF LIABILITY.  Except for claims arising under a party’s indemnification under this agreement, neither party’s aggregate liability will exceed the amount actually paid by customer in the twelve (12) month period preceding the event giving rise to such claim, and neither party will be liable for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind arising from customer’s use of the service.

18. Basis of Bargain.  The parties acknowledge and agree that the foregoing sections on warranties and disclaimers, indemnification and limitation of liability fairly allocate the risks between the parties and are essential elements of the basis of the bargain between the parties.

19. Force Majeure. Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said party’s obligations when caused by Acts of God, strike, acts of war, inability of supplies, material or labor; or any other cause beyond the reasonable control of the said party.

20. General. This Agreement will be governed by laws of the state of California without regard to the choice or conflicts of law provisions of any jurisdiction.  If any provision of these terms and conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.  No joint venture, partnership, employment, or agency relationship exists between Customer and Provider as a result of this Agreement.  The failure of Provider to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Provider in writing. This Agreement comprises the entire agreement between Customer and Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

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