Terms of Service
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access any of Our services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 17, 2018. It is effective between You and Us as of the date of You accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Subscription Agreement.
“Alpha Services” or “Beta Services” each mean Services that are not generally available to customers.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via propared.com or login to the applicable Service.
“Free Services” means the products and Services that are ordered by You and made available online by Us for free, including associated offline components, as described in the Documentation. “Free Services” exclude Purchased Services, Content and Non-Propared.com Applications.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services.
“Non-Propared.com Applications” means a web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified by Us as such.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and 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.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Content and Non-Propared.com Applications.
“Subscription” means a subscription for use of any Service.
“User” means an individual who registers to use a Service, or who is authorized by You to use a Service on Your behalf, each having a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Propared LLC, a Colorado limited liability company.
“You” or “Your” means the person or company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to Services or collected and processed by or for You using the Services or Purchased Services, excluding Content and Non-Propared.com Applications.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service Subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the registration web page for such Services. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. If you do not purchase a Subscription to the same services as those covered by the trial, we reserve the right to, among other things, restrict the functionality of the Services or otherwise restrict your access to the Services entirely.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the user guides provided during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services.
We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support to the extent offered by Us and if purchased by You, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the hours between midnight and 5:00am eastern standard time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Propared.com Application, or denial of service attack.
3.2. Protection of Your Data.
Unless you purchase a Purchased Service, You may not be able to migrate Your data from a Free Service to a Purchased Service.
AT THE CONCLUSION OF A FREE TRIAL, OR WITH RESPECT TO YOUR USE OF FREE SERVICES, IN THE EVEN THAT YOU DO NOT LOGIN TO YOUR ACCOUNT FOR A PERIOD OF 30 DAYS, WE RESERVE THE RIGHT TO PERMANENTLY DELETE ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, OR PURCHASE UPGRADED SERVICES.
3.3 Our Personnel.
We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4 Alpha & Beta Services.
From time to time, We may invite You to try Alpha or Beta Services at no charge or for a discounted rate. You may accept or decline any such trial in Your sole discretion. Alpha or Beta Services will be clearly designated as alpha, beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Alpha and Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Alpha and Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Alpha or Beta Services becomes generally available. We may discontinue Alpha or Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with an Alpha or Beta Service.
3.5 Free Services.
We may offer Free Services at no charge. You may accept or decline any such Free Services in Your sole discretion. Free Services will be clearly designated as such. Free Services are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. We may discontinue Free Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Free Service.
WE WILL USE REASONABLE EFFORTS, IN OUR SOLE DISCRETION, TO PROVIDE YOU WITH ADVANCE NOTICE VIA EMAIL IN THE EVENT WE INTEND TO DISCONTINUE FREE SERVICES.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
4. USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased as Subscriptions, (b) Subscriptions may be added during a Subscription term at the same pricing as the underlying Subscription pricing, prorated for the portion of that Subscription term remaining at the time the Subscriptions are added, and (c) any added Subscriptions will terminate on the same date as the underlying Subscriptions.
4.2 Usage Limits.
Free Services, Services, Purchased Services and Content may be subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Free Service, Service, Purchased Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Free Service, Service, Purchased Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Free Service, Service, Purchased Service or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities.
You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non-Propared.com Applications with which You use a Free Service, Service, Purchased Service or Content.
4.4 Usage Restrictions.
You will not (a) make any Free Service, Service, Purchased Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Free Service, Service, Purchased Service or Content, or include any Free Service, Service, Purchased Service or Content in a service bureau or outsourcing offering, (c) use a Free Service, Service, Purchased Service or Content to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Free Service, Service, Purchased Service or Content to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Free Service, Service, Purchased Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Free Service, Service, Purchased Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Free Service, Service, Purchased Service or Content, (k) access any Free Service, Service, Purchased Service or Content in order to build a competitive product or service, or (l) reverse engineer any Free Service, Service, Purchased Service (to the extent such restriction is permitted by law).
4.5. Removal of Content and Non-Propared.com Applications.
If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Propared.com Application hosted on a Free Service, Service or Purchased Service by You may violate our policies, applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Propared.com Application or modify the Non-Propared.com Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Free Service, Service, Purchased Service, Content and/or Non-Propared.com Application until the potential violation is resolved.
5. NON-PROPARED.COM PROVIDERS
5.1. Acquisition of Non-Propared.com Products and Services.
We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Propared.com Applications and implementation and other consulting services. Any acquisition by You of such Non-Propared.com products or services, and any exchange of data between You and any Non-Propared.com provider, is solely between You and the applicable Non-Propared.com provider. We do not warrant or support Non-Propared.com Applications or other Non-Propared.com products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
5.2. Non-Propared.com Applications and Your Data.
If You install or enable a Non-Propared.com Application for use with a Free Service, Service, Purchased Service or Content, You grant Us permission to allow the provider of that Non-Propared.com Application to access Your Data as required for the interoperation of that Non-Propared.com Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-Propared.com Application.
5.3. Integration with Non-Propared.com Applications.
The Free Services, Services, Purchased Services or Content may contain features designed to interoperate with Non-Propared.com Applications. To use such features, You may be required to obtain access to Non-Propared.com Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Propared.com Applications. If the provider of a Non-Propared.com Application ceases to make the Non-Propared.com Application available for interoperation with the corresponding service features on reasonable terms, We may cease providing those service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in Order Forms.
Except as otherwise specified herein or in an Order Form, (i) fees are based on services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription term.
6.2. Invoicing and Payment.
You will provide Us with valid and updated credit card information. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial Subscription term and any renewal Subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges.
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future Subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes.
We will not exercise Our rights under Section6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality.
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Free Services, Services, Purchased Services or Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to Use Content.
We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
7.3. License by You to Host Your Data and Applications.
You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-Propared.com Applications and program code created by or for You using a Free Service, Service, Purchased Service, as necessary for Us to provide the services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-Propared.com Application or program code.
7.4. License by You to Use Feedback.
You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Free Services, Services, Purchased Services or Content any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of such services.
8.1. Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Free Services, Services, Purchased Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties.
We warrant that 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. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, 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. CONTENT ALPHA AND 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.
10.1. 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 Us 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 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 settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.2. 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.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability.
NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement.
This Agreement commences on the date You first accept it and continues until the expiration or termination of the later of (a) all Subscriptions hereunder, or (b) Free Services used by You.
12.2. 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 for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
A party may terminate this Agreement for cause (i) upon 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.
12.4. Refund or Payment upon Termination.
If this Agreement is terminated by You in accordance with Section 12.3 (Termination for “cause”), 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 Us in accordance with Section 12.3, 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 Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion.
Upon the termination or expiration of this Agreement, you will not have the ability to download or export Your Data.
12.6. Surviving Provisions.
The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
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 mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) 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. All notices to be sent to the Us shall be sent to:
Attn: Legal Affairs
1737 Boulder Street
Denver, CO 80211
13.2. Agreement to Governing Law and Jurisdiction.
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
14. GENERAL PROVISIONS
14.1. Export Compliance.
The services, Content, 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 or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
14.3 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between You and Us regarding Your use of services and Content and 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.
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. Notwithstanding, in the event of such a termination by You, We will not 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.
14.5. Relationship of the Parties.
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-Party Beneficiaries.
Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
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.
Information We Collect through the Site
Personally Identifiable Information:
We collect information that personally identifies you. This information may include, but not be limited to your name, username, email address, occupation, industry, country of origin or credit card details, and other information as we may from time to time request at our discretion (“Personally Identifiable Information”), including information from third parties, only if you choose to share such information with us. For example, you may be asked to provide us with certain Personally Identifiable Information when you register with or use our services, when you register with or use the Site, when you correspond with us and at other times . The decision to provide this information is optional; however, if you elect not to register with or provide such information, you may not be able to access certain content, features, or services available on or through the Site. We reserve the right to send you certain communications relating to Propared’s services, such as service announcements, administrative messages, special promotions, and newsletters, which are considered part of your account, without offering you the opportunity to opt out of receiving them.
Non-Personally Identifiable Information:
We automatically collect Non-Personally Identifiable Information when you use the Site, which may include anonymous identifiers associated with your mobile device. Non-Personally Identifiable Information includes demographic information (such as age, gender, city, state or behavioral data) and a user’s click stream information. Click stream data is anonymous and can include information such as your IP address, web pages viewed, the date and time at which those pages were viewed and interaction with content and advertisements on those web pages. Technologies used to collect this click stream data include cookies and web beacons. We collect Non-Personally Identifiable Information and store it in log files. We use this information to help us understand how people use our Site. For example, each time you use the Site we automatically collect the type of web browser you use, your operating system, your ISP, which pages you view, and the time and duration of your visits to the Site.
We may augment our click stream data with Non-Personally-Identifiable Information from third party Services Providers (defined below) to target and serve some of the advertisements you may see on the pages of our Site . We utilize the non-personal information described above to better customize the sort of advertisements you see. This information also may be used to help measure and research an advertisement’s effectiveness, or for other purposes. We also aggregate anonymous cookie data in order to identify large audience segments that assist advertisers in targeting their campaigns to the most relevant Internet audience.
The use and collection of information by our third-party advertising Service Providers is governed by the individual privacy policies of those providers.
Many of our advertising Service Providers are members of the National Advertising Initiative (“NAI”). You can obtain more information about these advertising service providers’ information collection practices, and opt out of such practices (and at the same time opt out of the collection practices of other, or all, NAI members) by following the opt out instructions on the NAI’s website at: http://www.networkadvertising.org/managing/opt_out.asp
Cookies and Web Beacons:
Some of our Service Providers may use their own cookies and web beacons in connection with the services they perform on our behalf. If you would like more information about these practices and to know your choices about not having this information used by these companies, please click here.
Information You Choose to Display Publicly on Our Site
You may elect to publicly post Personally Identifying Information about yourself, or otherwise share Personally Identifying Information about yourself with other registered users of the Site, in the normal use of your usage of the Site. This could occur through use of services that may include optional profile fields, in interactions on public boards, wikis, cases and forums, or if a previously private interaction is made public.
Information like that, which is voluntarily posted in publicly visible parts of our Site or that is shared with other registered users, (a) is considered to be public, even if it would otherwise be considered to be Personally Identifying Information, and (b) will remain on our Site (and in the case of information shared with other registered users, available to those users) even after you terminate your account with us. As such, it is not subject to the protocols listed below, because we don’t control it; you do. Additionally, voluntarily publicizing such information or sharing it with other registered users means that you lose any privacy rights you might normally have with regards to that information. It may also increase your chances of receiving unwanted communications, like spam.
Please also remember that if you choose to provide Personally Identifiable Information using certain public features of the Site, or with other registered users of the Site, individuals reading such information may use or disclose it to other individuals or entities without our control and without your knowledge, and search engines may index that information. We therefore urge you to think carefully about including any specific information you may deem private in content that you create or information that you submit through our Site.
How We Use and Share Information Collected through the Site
We may share Personally Identifiable Information with our service providers that help us provide the services that you request (“Service Providers”). For example, we may contract with Service Providers to provide certain services, such as credit card processing, advertising, analytics tools, data management services, web hosting, and web development. We provide our Service Providers with the information needed for them to perform these services, however, each Service Provider must agree to implement and maintain reasonable security procedures and practices appropriate to the nature of the information involved in order to protect your information from unauthorized access, destruction, use, modification or disclosure.
We use outside vendors and hosting companies to provide the necessary hardware, software, networking, storage, and related technology required to run our Site and services. We retain full rights of ownership on our software, designs, code, databases and any other internally developed application to provide the service. Subject to the terms of this policy, you retain full rights of your data posted on the service.
Non-Personally Identifiable Information Only:
We may use, and disclose to third parties, certain Non-Personally Identifiable Information regarding the Site (e.g., number of visits, page views, and the like) without your permission. However, such information does not identify you individually.
Compliance with Laws and Law Enforcement:
Our company will work with government and law enforcement officials and private parties to enforce and comply with the law. We reserve the right to disclose Personally Identifiable Information and Non-Personally Identifiable Information to government or law enforcement officials or private parties if, in our discretion, we believe it is necessary or appropriate in order to respond to legal requests (including court orders and subpoenas), to protect the safety, property or rights of Propared or of any third party, to prevent or stop any illegal, unethical, or legally actionable activity, or to comply with the law.
Educational Institutions and FERPA:
For Users subject to Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA) Propared acknowledges that for the purpose of our Terms of Service, that it is a “school official” with “legitimate educational interests” in customer data and agrees to abide by FERPA requirements on school officials imposed by 34 CFR 99.33(a). Propared only uses customer data to provide the service, including purposes compatible with providing the service, and will not use customer data for any advertising or similar commercial purposes.
The User understands that Propared may possess limited or no contact information for User’s students and students’ parents. Consequently, User will be responsible for obtaining any parental consent for any end user’s use of the Services that may be required by applicable law and to convey notification on behalf of Propared to students (or, with respect to a student under 18 years of age and not in attendance at a postsecondary institution, to the student’s parent) of any judicial order or lawfully-issued subpoena requiring the disclosure of User Data in Propared’s possession as may be required under applicable law.
Certain Data Retention:
Third Party Websites:
Spyware or Adware:
These terms refer to applications that are downloaded to your computer. These types of applications deliver ads (usually in the form of pop-up type ads) based on your web usage. We do not participate in any way with spyware or adware applications, and we do not download these types (or any types) of applications without your expressed acceptance. Cookies and .swf files are not spyware or adware, and they are not harmful to your computer.
We recognize the importance of safeguarding the confidentiality of your information. Accordingly, we employ standard security measures designed to protect your information from unauthorized access. However, no data transmission over the Internet or other network can be guaranteed to be 100% secure. Therefore, while we strive to protect any information you transmit on or through the Site, please be advised that our company assumes no responsibility or liability for disclosure of your information due to errors in transmission, unauthorized third-party access, or other causes beyond our company’s reasonable control.
Processing in the United States:
By using our Site, you agree that the collection, use, transfer, and disclosure of your Personally Identifiable Information will be governed by the applicable laws in the United States.
Children’s Privacy Statement:
The Site is directed to, and intended for use by, adults only. We do not knowingly collect information from children under the age of 13. If we become aware that we have inadvertently received information from a child under the age of 13, we will delete such information from our records. Because we do not knowingly collect any information from children under the age of 13, we also do not knowingly distribute such information to third parties.
1737 Boulder Street
Denver, CO 80211