PROPEL AHEAD TECHNOLOGIES, INC.
The terms and conditions of this Service Agreement (the “Agreement”) constitute a legal agreement between you (either an individual or, if purchased or otherwise acquired by or for an entity, such entity) (“you” or “Customer”) and Propel Ahead Technologies, Inc. (“we,” “us,” or “PropHead”) with respect to the use of the PropHead mobile application and website (collectively, the “Software”) by the Customer. The Software provides students, educators, colleges, and universities with access to PropHead’s course schedule and assignment tracking platform on a variety of mobile devices via the Internet. Access to and use of the Software, including its machine-readable object code and related features, content, functionality, and access to and use of the user interface and the website(s) associated with the Software, is provided by PropHead subject to this Agreement.
This Agreement also applies to any corrections to the current version of the Software and any subsequent versions, releases, or upgrades of the Software which PropHead makes generally available. References to “Prophead,” “we,” and “us” in this Agreement include Prophead’s respective subsidiaries, affiliates, agents, employees, predecessors in interest, licensees, licensors or providers of content, successors, and assigns. References to “you” or “Customer” in this Agreement also include any individual user(s) of the Software authorized by Customer, if applicable (each, an “User”).
By either executing an PropHead Customer Order (as defined below), installing, copying, downloading or otherwise accessing the Software, or electronically accepting or otherwise executing this Agreement, Customer agrees to be bound by the terms of this Agreement. “Customer Order” means a PropHead “quote,” purchase Customer Order, and/or any other form or writing that is physically or electronically executed by both Customer and PropHead pursuant to which Customer agrees to purchase the products or services subject to this Agreement. This Agreement is incorporated by reference into any Customer Order without modification. A Customer Order may include, but is not limited to, (i) type of Software, (ii) number of licenses, (iv) type of license(s), and (v) pricing.
If you do not intend to be legally bound to the terms and conditions of this Agreement, you may not access or otherwise use the Software.
1. ELIGIBILITY TO USE THE SOFTWARE
PropHead will only provide Software access to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Software only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. The Software and this Agreement is not intended for children under the age of 13.
2.1 Access Grant
PropHead grants you a limited, revocable (as provided in this Agreement), non-exclusive, non-transferable, non-sublicensable license to access and use the Software (each, a “Software License”). Unless specified otherwise, all licenses granted hereunder are limited, revocable, non-exclusive, non-transferable, non-sublicensable licenses to the Software. All Software Licenses are subject to the terms, conditions and restrictions set forth in this Agreement; the number and type of licenses and the fees set forth in a Customer Order, as applicable; and the payment requirements set forth in this Agreement. All Software Licenses are granted solely for the purposes set forth in this Agreement. Unless otherwise stated herein or in a Customer Order, the Software is licensed on a per User basis and as such the Software may only be used or accessed by Customer, or if the parties have entered into a Customer Order, by no more than the number of Users specified on each Customer Order. Other than any software provided as an included part of the Software, Customer shall be responsible for activating, obtaining, and/or maintaining any third party components, hardware, or software that become necessary or desirable to fully utilize the Software.
With respect to each Software License, Customer hereby agrees to the following restrictions (hereinafter referred to as, “License Restrictions”):
(i) Customer shall not share with or assign, copy, sublicense, transfer, lease, rent, sell, distribute, install, or otherwise provide to any non-affiliate (other than Users) a Software License, the Software, any use or application of the Software, or Customer’s rights under this Agreement, nor shall Customer pledge as security or otherwise encumber, the Software;
(ii) Customer shall use the Software and any Device solely, if Customer is an entity, for Customer’s internal use within Customer’s ordinary business operations and, if Customer is an individual, for Customer’s personal use; provided that any use will be in accordance with all applicable laws and regulations, and as provided in this Agreement and any supplemental limitations specified or referenced in the relevant Customer Order, if any;
(iii) Customer shall not use the Software or any of its features to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene or that in a way violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability;
(iv) Customer shall not use the Software in any manner that is likely to damage, disable, overburden, or impair the Software or interfere in any way with the use or enjoyment of the Software by others or introduce any malware or participate in any other malicious activity in Customer’s use of the Software;
(v) Other than as expressly set forth in this Agreement, Customer shall not modify, adapt, translate, duplicate, disassemble, decompile, reverse assemble, reverse compile, or reverse engineer, or take similar action with respect to the Software for any purpose, or attempt to discover the underlying source code or algorithms of the Software;
(vi) Customer shall not engage in competitive analysis, benchmarking, use, evaluation or viewing of the Software or create any derivatives based upon the Software, whether for Customer’s internal use or for license or for resale;
(vii) Customer shall not employ any entity that licenses or provides any software, product, or service that is competitive with the Software to use the Software on Customer’s behalf, view the Software, or provide management, staging, support, hosting, or similar services with regard to the Software without the prior written consent of PropHead; and
(viii) Customer shall not permit or encourage any party, whether acting directly or on behalf of Customer, to breach or violate any of these License Restrictions.
3.1 Registration and Monthly Subscriptions
In order to use the Software, you must create a registered account. To create a registered account, you must first set up your profile by providing us with your first and last name, a valid email address, and a password. If you elect to access or use any paid component of the Software, such as becoming a subscriber of one Prophead’s available monthly plans (a “Monthly Subscription”), you may also be asked to provide a valid method of payment, such as a debit card or credit card (a “Payment Method”) in order to use the Software.
3.2 Customer Orders and Annual Subscriptions
a. Customer may from time to time place Customer Orders for the Software. Customer Orders will be deemed accepted by PropHead upon the earlier of when the requested access to the Software has been provisioned by PropHead or when PropHead otherwise informs Customer of PropHead’s acceptance of such Customer Order, whichever is earlier (“Customer Order Effective Date”). Unless otherwise specified in an Customer Order and subject to Customer’s payment of all applicable fees, PropHead will deliver to Customer, within 5 business days after the Customer Order Effective Date, a copy of the password and username for a person designated by Customer to create and manage any accounts associated with Customer. In the event that Customer wishes to place additional Users under a Software License or avail itself of any other offerings set forth herein, the parties shall execute a Customer Order detailing the number and type of additional Software Licenses and/or other offerings to be obtained. Pricing for such Customer Orders shall be as set forth in the original Customer Order, subject to any pricing changes made pursuant to this Agreement, or, if no pricing is provided in the original Customer Order, PropHead’s then-current published prices shall apply.
b. To the extent reflected in a Customer Order, a Software License providing for the use of the Software on a subscription basis shall be hereinafter referred to as a “Subscription License.” The term for Subscription Licenses shall be one (1) year, unless another term is specified in an Customer Order (the “Subscription Period”). The initial Subscription Period begins on the date provided in the Customer Order (“Service Start Date”). In the event additional Subscription Licenses are added during a Subscription Period, such additional Subscription Licenses shall be coterminous with the then current Subscription Period and the fees for the same shall be prorated accordingly. Unless Customer terminates Subscription Licenses by notifying PropHead at least sixty (60) days prior to the expiration of a Subscription Period, such Subscription Licenses shall automatically renew for an additional Subscription Period.
3.3 Trial Subscription
New Customers are eligible to license the Software on a trial basis (“Trial Subscription”) solely for the purposes of testing and evaluating the Software in a non-production environment. The Trial Subscription shall be for a limited time. New Customers may take advantage of any "new customer" promotion only once. Requirements for a special promotion will be stated at the time each offer is presented. As a condition of this Agreement, you agree not to register multiple times for the same promotional offer using multiple names, addresses, email addresses or other means. Any such action shall constitute a violation of this Agreement and may result in termination of your account. At the time of signing up for a Trial Subscription, you may be asked to provide a Payment Method in order to use the Software during the Trial Subscription period. Your Payment Method will not be charged during the Trial Subscription period. UPON THE EXPIRATION OF A TRIAL SUBSCRIPTION, THE THEN CURRENT MONTHLY FEES (AS DEFINED IN SECTION 5.1 BELOW) MAY BE CHARGED TO YOUR PAYMENT METHOD, UNLESS YOU TIMELY CANCEL THE TRIAL SUBSCRIPTION. PLEASE NOTE THAT YOU WILL NOT BE NOTIFIED THAT YOUR TRIAL SUBSCRIPTION WILL END OR HAS ENDED.
4.1 Monthly Fees
a. By creating an account with PropHead and providing us with a Payment Method during the registration process, you are authorizing us to use such Payment Method to pay all fees and charges associated with the monthly plan you selected (“Monthly Fees”). The first Monthly Fee will be charged to your Payment Method on the date of your purchase. Thereafter, the Monthly Fees and any applicable tax and service fees will be charged to your Payment Method on a recurring basis in accordance with your designated billing cycle.
b. You agree to maintain a valid Payment Method in your account information. You may update your Payment Method at any time by accessing your account via the Software. If at any time we are unable to charge your Payment Method for the Monthly Fees due to insufficient funds, expired or invalid account details, or otherwise, you remain responsible for the cost of such Monthly Fees. A change in your Payment Method may result in changes to your billing cycle. It is your responsibility to update and maintain the Payment Method associated with your Monthly Fees. In the event your Payment Method is unable to cover the Monthly Fees, we reserve the right to suspend your account and access to the Software until such time as the Payment Method has been updated to permit us to charge the Monthly Fee.
c. You may cancel your registration with PropHead at any time. Please note that you must cancel your registration before it renews for a subsequent month in order to avoid being charged for the next month's Monthly Fee. If you cancel your registration, the cancellation will become effective at the end of the then-current billing cycle. REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. WE DO NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-MONTH. In such a circumstance, you will continue to have access to the Software until the end of your monthly billing cycle.
4.2 Subscription Fees
In the event that you agree to become a subscriber via a Customer Order, you agree to pay all the fees set forth on all Customer Orders under this Agreement (“Subscription Fees”). In the event that the parties mutually agree in writing to any extension of a Subscription Period or the provisioning of additional Subscription Licenses, Customer will pay PropHead the then‐current list price for such extension or additional licenses, unless otherwise set forth in the applicable Customer Order. After the initial Subscription Period, PropHead may increase the Subscription Fees it charges for the Software. Any increase in the Subscription Fees will take effect at the beginning of Customer’s next Subscription Period, or at such later date as may be specified in the applicable Customer Order. Please note that all Subscription Fees are nonrefundable. All Subscription Fees and other amounts specified in this Agreement are payable in United States Dollars.
5. PROPRIETARY RIGHTS
Title to and ownership of the Software and all PropHead copyrights, names, trademarks, trade names, service marks or any other identifying characteristics of the Software are proprietary intellectual property of significant value and goodwill to PropHead and all associated intellectual property rights relating thereto (the “PropHead IP”) are retained by PropHead. This Agreement only grants Customer the limited right to use the PropHead IP under the terms and restrictions specified in this Agreement. Customer does not, and will not, acquire any other right, title or interest in any PropHead IP, which will at all times remains the exclusive property of PropHead or the applicable third party licensor to PropHead. Customer will not remove, suppress, or modify in any way any proprietary marking which is on or in the PropHead IP, or which is on any media supplied with the PropHead IP, except where expressly allowed. Customer acknowledges and agrees that PropHead shall be the sole owner of any subsequent versions, releases, or upgrades of the Software, corrections to the current version of the Software, or derivatives of the Software which are developed by PropHead during and after the term of this Agreement. Without limiting the foregoing, Customer expressly acknowledges and agrees that PropHead shall be the sole owner of any newly-developed intellectual property including but not limited to (i) newly-developed, revised, or modified source code or device and (ii) inventions where such are related in any way to the Software or PropHead’s general business, regardless of the creator, whether such are developed, revised, or modified in response to Customer’s requests, suggestions, or ideas, even if performed as services paid for by Customer. During the term of this Agreement and thereafter, Customer shall not assert the invalidity of the PropHead IP, or contest PropHead’s right, title or interest therein and thereto, and Customer shall not cause, influence, or assist in any manner whatsoever, any other party to make any such assertions or contest.
6. FEEDBACK AND POSTINGS
Portions of the Software may invite you to provide us with feedback. Please be aware that PropHead does not accept unsolicited submissions of concepts, creative ideas, suggestions, stories, or other potential content. This is to avoid the possibility of future misunderstanding when projects developed by PropHead staff or representatives might seem to others to be similar to the submitted concepts, creative ideas, suggestions, stories or other potential content. Therefore, please do not send PropHead any unsolicited submissions. In any event, no material you send to us will be treated as confidential. Please also be aware that your feedback will not be acknowledged and does not create a confidential, fiduciary or other special relationship between you and PropHead, our affiliates or any of our licensees, successors or assigns or place PropHead or any of our affiliates, licensees, successors or assigns in a position that is any different from the position held by members of the general public. You acknowledge and agree that neither PropHead nor any of our affiliates, licensees, successors or assigns has now, or shall have in the future, any duty or liability, direct or indirect, vicarious, contributory or otherwise, with respect to the infringement or protection of any copyright in and to your feedback, and that PropHead and its licensees, successors or assigns are not responsible for the loss, deletion, failure to store or misdelivery of any feedback submitted.
To the extent that use of the Service and/or the Site provides you or other users an opportunity to post and exchange information, content, ideas and opinions (“Postings”), be advised that PropHead does not screen, edit, or review Postings prior to their appearance on the Software or elsewhere, and Postings do not necessarily reflect the views of PropHead. To the fullest extent permitted by applicable laws, PropHead excludes all responsibility and liability for the Postings or for any losses or expenses resulting from their use and/or appearance on the Software or elsewhere. PropHead reserves the right to monitor all Postings and to remove any which it considers in its absolute discretion to be offensive or otherwise in breach of this Agreement or in violation of general community standards and notions of decency. You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all material, content and information they contain and that such Postings shall not infringe any proprietary right, intellectual property right or other rights of third parties.
Please act responsibly when using the Software. You may only use the Software and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through the Software. You may not collect or store personal information regarding other users. You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You agree that if any third party claims that material you have contributed to the Software is unlawful, you will bear the burden of establishing that it is lawful.
7. COPYRIGHT NOTICE
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. In appropriate circumstances and at the discretion of PropHead, PropHead may terminate a User’s account who becomes a repeat copyright infringer. If you believe in good faith that any content made available in connection with the Software infringes your copyright, you (or your agent) may send us a notice requesting that the content be removed, or access to it blocked. Notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.copyright.gov for details).
Currently, an effective notice must contain the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at that site; (iii) identification of the claimed infringing material or subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your address, telephone number, and, if available, your email address; (v) a statement that you have a good faith belief that use of the copyrighted material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices and counter notices with respect to the Service should be sent to:
Propel Ahead Technologies, Inc.
227 Bellevue Way #493
Bellevue, WA 98004
or via email at email@example.com.
Please note that while PropHead seeks to preserve any and all exemptions from liability that may be available under the copyright law, this is not a stipulation that PropHead is a service provider as defined in 17 U.S.C. section 512c or elsewhere in the law.
8. CUSTOMER DATA
Where Customer is an entity, Customer is responsible for ensuring that Users comply with Customer’s obligations under this Agreement. Customer will duly observe all of its obligations under any relevant data protection law or regulation that may apply to the relationships contemplated under this Agreement, including, specifically, any obligation for Customer to configure the Software appropriately, provide notice, obtain consents or file registrations with applicable data protection authorities. Customer will configure the Software in accordance with all applicable laws and regulations. Further, as required by applicable law or regulation, Customer will notify Users that any Content (defined below) provided as part of the Software will be made available to a third party (i.e., PropHead) as part of PropHead providing the Software. “Content” means any and all data, applications, files, information or materials accessed, transmitted, uploaded, published or displayed through the Software by Customer, Users, or any third party users and/or their devices. Content does not include personal information that may be collected during the activation or maintenance of a Customer account or Usage Data (defined below).
8.2 Usage Data
limited to PropHead account identification number; an accessing computer or device’s make, model, operating system, and operating system version; dates and times of Software logins; database actions taken; external calls, HTTP requests and browser load pages made by the Software; errors made by the applications running in the Software; and the amount of memory and CPU usage across the Software.
9. CONTENT SECURITY AND DATA PRIVACY
Without limiting your obligations under this Agreement, or this Section, PropHead will implement commercially reasonable administrative, physical, and technical measures including disaster recovery procedures designed for Content against accidental or unlawful loss, access or disclosure.
9.2 Third Party Processing
Customer authorizes PropHead to subcontract processing of Content under this Agreement to a third party provided that: (i) PropHead will ensure any subcontractor it appoints will protect the Content to a standard which is substantially equivalent to the standard that is set forth in this Agreement; and (ii) PropHead will be responsible for the acts, errors and omissions of any subcontractor PropHead appoints to process the Content.
9.3 Data Storage and Processing
Customer agrees that Content and Usage Data collected or received by PropHead in connection with the download, installation, configuration, maintenance, support and use of the Software may be transferred, stored and processed in the United States or any other country in which PropHead or its Affiliates or service providers maintain facilities. By downloading, installing, or using the Software, or by receiving customer support assistance, Customer consents to the worldwide processing of both technical and personal information. PropHead is enrolled in the U.S. Department of Commerce Safe Harbor Program and will remain enrolled in this program or another replacement program through the Term of this Agreement.
10. WARRANTIES DISCLAIMER
YOUR USE OF THE SOFTWARE IS AT YOUR OWN RISK. THE SOFTWARE AND ALL THE MATERIALS, INFORMATION, CONTENT, FUNCTIONALITY, AND OTHER FEATURES IN THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PROPHEAD, ITS AFFILIATES, SUPPLIERS, AND/OR LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROPHEAD, ITS AFFILIATES, SUPPLIERS, AND/OR LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PROPHEAD, ITS AFFILIATES, SUPPLIERS, AND/OR LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, CONTENT, FUNCTIONALITY, OR OTHER FEATURES IN THE SOFTWARE, OR ANY SITES LINKED TO THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
11. LIMITATION OF LIABILITY
PROPHEAD, ITS AFFILIATES, SUPPLIERS, AND/OR LICENSORS DO NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHERWISE), INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO FAILURE OF PERFORMANCE, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, WORM, TROJAN HORSE PROGRAM OR DISABLING CODE, DELAY IN OPERATION OR TRANSMISSION, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF A RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION RESULTING FROM ANY USE OF, OR INABILITY TO USE, THE SOFTWARE OR THE MATERIAL, INFORMATION, CONTENT, FUNCTIONALITY, OR OTHER FEATURES ON THE SOFTWARE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF PROPHEAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITATION, YOU (AND NOT PROPHEAD) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE ARISING. YOU ASSUME THE RISK IN USING THE SOFTWARE, AS WELL AS TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
12.1 Monthly Subscriptions
PropHead may suspend or terminate access to the Software and your registered account immediately for any reason or for no reason whatsoever, including if PropHead reasonably determines that you are in violation of this Agreement or receives information that you no longer meet the eligibility criteria provided in Section 1. In such event, you must cease all use of the Software. The suspension or termination of your registered account is in addition to, and not in lieu of, any rights and remedies available to PropHead, its partners and affiliates under this Agreement or under applicable laws. Additionally, you may terminate your account at any time by following the cancellation process set forth in Section 4.1 above. Please note you shall still be responsible for all Monthly Fees and any applicable tax and service fees incurred prior to the effective date of termination. This Agreement is effective until terminated; however, your past and any future use of the Software shall be governed by the terms of this Agreement. Your rights under this Agreement will terminate automatically without notice from PropHead if you fail to comply with any term(s) of this Agreement.
12.2 Annual Subscriptions
a. This Agreement as it applies to Subscription Licenses will commence on the date on which Customer accepts or is deemed to accept this Agreement as provided herein, or if physically executed, the date of last signature, and will continue for so long as a valid Customer Order is in place or until Customer ceases use of all offerings hereunder, whichever is later; unless the Agreement is earlier terminated as provided below.
b. Customer may terminate this Agreement for cause: (i) in the event of a material breach by PropHead of this Agreement that is unremedied for a period of thirty (30) days after receipt of written notice by PropHead or (b) if PropHead becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Any failure by Customer to timely pay any fees due hereunder will constitute a material breach of this Agreement. With respect to terminations for cause, Customer shall receive a refund of any related prepaid unused fees for Subscription Licenses. Except as otherwise expressly and specifically stated in this Agreement, no refunds or payments of any kind shall be due Customer.
c. PropHead may terminate the Agreement and the relevant Software License(s) under this Agreement: (i) if Customer ceases or is delinquent in making payments of any applicable fees owed for a period of thirty (30) days after notification of such delinquency; (ii) in the event of a material breach of this Agreement by Customer that is unremedied for a period of thirty (30) days after receipt of written notice by Customer;
d. Upon the termination or expiration of this Agreement and the related Software Licenses for any reason whatsoever (i) any Software License will automatically and immediately terminate. Except for Customer terminations for cause, upon termination, Customer shall pay any fees then owing under this Agreement as of the date of termination within thirty (30) days. Terminations are effective upon Customer’s compliance with this Section.
The provisions of this Agreement that by their sense and context are intended to survive termination of this Agreement, shall survive termination.
13. MODIFICATION OF THE SOFTWARE
PropHead reserves the right to modify the content, organization or structure of the Software, and may change, suspend, or discontinue any feature of the Software at any time, in PropHead’s sole discretion. PropHead shall have complete discretion over the features, functions, and other terms and conditions on which the Software is offered. Notwithstanding anything else contained in this Agreement, PropHead will have no obligation to continue making the Software available or to produce or release new versions of the Software or any updates thereto, or to continue offering any portion of the Software at a certain price or free of charge.
14. CHANGES TO THIS AGREEMENT
PropHead may add, delete, and/or modify the terms and conditions contained in this Agreement from time to time by posting a change notice on the Software. In the event of any material change to the Agreement, in PropHead’s sole discretion, Customer may be notified by email of such change. If any change is unacceptable to Customer, Customer should immediately cease use of the Software and may terminate this Agreement. Customer’s continued use of the Software following a notice of a change in the Agreement will constitute Customer’s binding acceptance of the changes.
15. THIRD PARTY SERVICES
PropHead may use third parties to provide certain services accessible through the Service (such as payment processing) (“Third Party Software”). PropHead does not control those third parties or the services provided and these third parties may have their own terms of service and other polices. When you use those services, you must comply with such terms and policies, as well as this Agreement. If any such terms or policies conflict with this Agreement, or other PropHead agreements or policies, you must comply with this Agreement and any other PropHead agreements, or policies, as applicable. All Third Party Software is provided “AS IS,” with no other warranties of any kind. Any Third Party Software sublicense will terminate when this Agreement terminates, when the Software License terminates, or when the Software is no longer being used by Customer. Third Party Software shall be subject to the License Restrictions. IN NO EVENT WILL PROPHEAD BE LIABLE FOR THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE OR THE BREACH OF ANY WARRANTY RELATED THERETO. PROPHEAD SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING ANY WARRANTY OF NON-INFRINGEMENT) AND DISCLAIMS ALL LIABILITY, INCLUDING ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE, CAUSED BY ANY THIRD PARTY PRODUCT.
16.1 Governing Law; Dispute Resolution
This Agreement will be governed by and construed in accordance with the laws of the State of Washington, USA, excluding its principles of conflicts of law and the private international law rules. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS Arbitration Rules by a single arbitrator who is fluent in written and spoken English and skilled and experienced with cloud or internet services. The place of such arbitration will be in Seattle, Washington, U.S.A. The judgment of the arbitrator will be final, nonappealable (to the extent not inconsistent with applicable law) and binding upon the parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief from a court of competent jurisdiction. No action arising out of this Agreement, regardless of form, may be brought more than one (1) year after the claiming party knew or should have known of the cause of action.
16.2 Class Action Waiver
Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both you and PropHead specifically agree to do so in writing following initiation of arbitration. This provision is not applicable to the extent such waiver is prohibited by law. IF YOU DO NOT WISH TO BE BOUND BY THE CLASS ACTION WAIVER OR INDIVIDUAL ARBITRATION PROVISIONS IN THIS SECTION 13, YOU MUST NOTIFY PROPHEAD IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY LAW. YOUR WRITTEN NOTIFICATION MUST BE SENT VIA MAIL OR ELECTRONIC MAIL TO USING THE INFORMATION PROVIDED IN SECTION 14 (NOTICES), AND MUST INCLUDE YOUR NAME, YOUR ADDRESS, YOUR PROPHEAD USERNAME, IF YOU HAVE ONE, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH PROPHEAD THROUGH INDIVIDUAL ARBITRATION.
16.3 Independent Contractors
The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.
Where Customer is an entity, PropHead may use the name and/or logo of Customer in a list of customers used in marketing materials until requested to cease this use by Customer. Within forty-five (45) days of signing this Agreement PropHead may publish a press release announcing the acquisition of Customer as a customer, provided Customer has an opportunity to review and approve the press release.
If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. This Agreement may only be amended or modified in writing and any modification or amendment to this Agreement will be effective only upon execution by an officer of each party.
This Agreement, including any rights, licenses or obligations under this Agreement, may not be assigned or otherwise transferred (whether by operation of law, merger, reorganization, or otherwise) by Customer to any non-Affiliate party without the prior written consent of PropHead and any attempt to do so in violation of the terms hereof shall be null and void.
16.7 Export Laws
The Software is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries. These laws and regulations include licensing requirements and restrictions on destinations, end users, and end use. Customer shall comply with all domestic and international export and import laws and regulations that apply to the Software and acknowledges that Customer has the responsibility to obtain any and all necessary licenses to export, re-export, or import the Software and covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Software, source code, or technology (including derivative products) received from PropHead under this Agreement to any other party or destination prohibited by the laws or regulations of the United States, without obtaining prior governmental authorization as required by those laws and regulations.
16.8 Force Majeure
In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event. This Section does not operate to relieve Customer of its obligation to make payments then owing.
16.9 No Third Party Beneficiaries
This Agreement is for the benefit of Customer and PropHead and does not provide any third party the right to enforce it or to bring an action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.
The failure of either party to require the performance by the other party of any provision hereof will not constitute a waiver of that provision or the required performance. The waiver by either party of any breach of any provision of this Agreement will only be valid if given in an executed written instrument and any such waiver will not constitute a waiver as to any subsequent breach or continuation of the same breach.
Headings are used in this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
16.12 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement and any related Customer Order supersede and replace all prior understandings, negotiations, commitments, representations, and agreements of the parties relating to the Software and the subject matter hereof. PropHead’s agreement to provide the Software to Customer is expressly conditioned upon the unequivocal application of all terms and conditions included in this Agreement to such transaction and any additional or different terms or conditions proposed by Customer (whether by purchase Customer Order, counter-offer, acknowledgement, electronic data interchange, vendor enrollment, or otherwise) are hereby expressly objected to and will not be in any way binding upon PropHead. Although any related Customer Order is incorporated by reference herein, it is the express agreement of the parties that the terms of this Agreement shall supersede any conflicting terms in any related Customer Order, unless the conflicting terms in such related Customer Order clearly express an intent to supersede this Agreement by directly and specifically referring to the section or sections of this Agreement to be superseded and such Customer Order is executed by an officer of each party.
17. COMMENTS, QUESTIONS, AND NOTICES
Except as otherwise provided herein, all notices, consents, requests, instructions, approvals, and other communications made, required, or permitted under this Agreement will be given to the parties at the addresses listed on the Customer Order by: (i) personal service or recognized international or overnight courier, deemed effective on reported delivery date; or (ii) email transmission, deemed effective 24 hours after the message was sent, if no “system error” or other non-delivery notice is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy the requirement. Duplicate notices are required to be provided to Propel Ahead Technologies, Inc., 227 Bellevue Way #493, Bellevue, WA 98004, or via email at firstname.lastname@example.org.