Protonet SOUL LiveSM Subscriber Agreement
This Subscriber Agreement (the “Subscriber Agreement”) is made by and between Protonet Inc., a Delaware corporation (“Protonet”) and the party subscribing to Protonet SOUL LiveSM, Protonet’s collaborative workplace management service (“Customer”). This Subscriber Agreement governs Customer’s access to Protonet SOUL LiveSM and its associated applications and website (the “Service”).
1. Entering Into the Subscriber Agreement
(a) Protonet offers the Service only to parties that agree to the terms of this Subscriber Agreement. By either registering for a Free Trial Period (defined below) or subscribing to a full paid version of the Service, Customer agrees to the terms of this Subscriber Agreement.
(b) If Customer is a corporation or other organization, the individual entering into this Subscriber Agreement on behalf of Customer hereby represents and warrants that he or she has the power and authority required to bind such organization to this Subscriber Agreement.
(c) If Customer is an individual, Customer hereby represents and warrants that he or she is at least 18 years of age, or the legal age to form a binding contract in Customer’s jurisdiction if that age is greater than 18 years of age, to enter into this Subscriber Agreement and use the Service.
2. Customer Obligations
(a) General. Customer, and the end users who access the Service under Customer’s account (the “End Users”), may access and use the Services only in accordance with the terms of this Subscriber Agreement and the Acceptable Use Policy, which is incorporated by reference.
(b) Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators will generally have the ability to access, monitor, use, and disclose the content created on, submitted to or transmitted through the Service by the Customer and/or Customer’s End Users (the “Customer Content”). Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscriber Agreement.
(c) End User Conduct; Compliance. Customer is responsible for use of the Service by its End Users (including Administrators) and for their compliance with Protonet’s Acceptable Use Policy. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary to allow the Administrator to access, monitor, use and disclose the Customer Content and to allow the features of the Service to function. The Service is not authorized for use by persons under the age of 18, and Customer will ensure that it does not allow any person under 18 to use the Service. Customer will promptly notify Protonet if it becomes aware of any unauthorized access to Customer’s account or the Service.
(d) Restrictions. Customer will not: (i) rent, sell, resell or lease the Service to any third party; (ii) use the Service for any malicious or unlawful purpose or in any unlawful manner; (iii) use the Service in a manner in which either the use or the failure of the Service might lead to personal injury, death or physical damage; or (iv) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so.
(e) Suspension. Protonet reserves the right to suspend the account of any End User who: (i) violates this Subscriber Agreement or Protonet’s Acceptable Use Policy; or (ii) is using the Service in a manner that Protonet reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for Protonet.
(f) Removal of Objectionable Content. Protonet reserves the right to block or remove any Customer Content that Protonet reasonably believes to: (i) be unlawful, (ii) violate the rights of other parties, or (ii) violate this Subscriber Agreement or the Acceptable Use Policy.
(g) Account Information. In order to access the Service, Customer must establish an account with Protonet. Customer agrees to fully and accurately provide the information requested by Protonet when setting up Customer’s account, and to regularly update such information.
(h) Data Backup. While Protonet will perform a daily backup, the Service is not designed to function as a data backup or recovery system. Customer acknowledges that Customer is solely responsible for maintaining backup copies of the Customer Content.
3. Intellectual Property Rights
(a) Representation and Warranty. Customer represents and warrants to Protonet that the transmission, storage, and publication of the Customer Content by means of the Service shall not violate the rights of any party.
(b) Limited License to Use Customer Content. Customer hereby grants to Protonet a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display its Customer Content for the following limited purposes: (i) providing the Service and associated customer support to Customer; (ii) displaying the Customer Content to the End Users; (iii) analyzing and improving the Service; and (iv) legal compliance and risk management.
(c) Reservation of Rights. Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Protonet any rights or interest in or to the Customer Content or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Protonet Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under the laws that apply to patent, copyright, trademark, or trade secret; any moral rights; or any similar rights.
(d) Use of Customer Suggestions. Protonet may incorporate into the Service any suggestions or feedback received from Customer without any obligation to Customer, and any such modifications to the Service shall be the sole and exclusive property of Protonet. Protonet may also share and publish aggregate, anonymized data about the use of the Service by Protonet’s customers and users.
(e) Protonet Customer List. Protonet may use Customer’s name and logo to identify Customer as a Customer of Protonet in Protonet’s print and electronic promotional materials.
(f) Software. Protonet may provide certain downloadable client software applications (the “Software”) for use in connection with the Service. This Software may be updated automatically and, if such Software is designed for use on a mobile device, then a compatible mobile device is required for use. During the term of this Subscriber Agreement, Protonet grants Customer a limited, nonexclusive, nontransferable, revocable license to use the Software, solely for use in connection with the Service. The license being granted to Customer hereunder does not constitute a sale of the Software or any copy thereof, and as between Protonet and Customer, Protonet retains all right, title, and interest in the Software.
4. Free Trial Period, Fees and Payment
(a) Protonet offers a 14-day free trial version of the Service (the “Free Trial Period”). At any time during the Free Trial Period, Customer may subscribe to a full paid version of the Service. If Customer does not subscribe to a paid version of the Service before the Free Trial Period expires this Agreement will terminate and Customer’s Customer Content will be deleted without notice as provided below.
(b) Subject to the Free Trial Period referenced above, Customer agrees to pay the monthly subscription fees set forth on Protonet’s Fee Schedule. Fees shall be payable in advance. Fees on account of any partial month shall be pro-rated based on a 30-day month. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Protonet to charge such fees using Customer’s selected payment method. By default, Customer accounts are set to auto-renew, and Protonet may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has cancelled the Service prior to its renewal date. Customer is responsible for providing complete and accurate billing information to Protonet. Protonet may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes in connection with the Service (excluding taxes on Protonet’s net income), and Protonet will charge tax when required to do so by law.
(c) Protonet reserves the right to adjust its fees on a prospective basis. Any adjustment shall take effect no earlier than 30 days after Protonet provides notice of the adjustment to Customer.
(a) This Subscriber Agreement shall remain in effect until terminated by either party.
(b) If Customer enrolls in the Free Trial Period but does not subscribe to a paid version of the Service before the Free Trial Period expires, this Subscriber Agreement shall terminate upon the expiration of the Free Trial Period. Customer shall have no financial obligation to Protonet on account of Customer’s use of the Service during the Free Trial Period.
(c) Customer may terminate this Subscriber Agreement at any time and for any reason by providing written notice to Protonet.
(1) If Customer terminates this Subscriber Agreement on account of a material change to the Service by Protonet, termination shall take effect immediately, and Protonet shall provide Customer a pro rata refund of any prepaid fees.
(2) If Customer terminates this Subscriber Agreement for any other reason, termination shall take effect at the end of the last day of the billing cycle during which Customer provides notice of termination, and Protonet shall not be required to provide any refund.
(3) Notwithstanding the foregoing, if Customer has enrolled in the Free Trial Program and terminates this Subscriber Agreement for any reason during the Free Trial Period, termination shall take effect immediately, and Protonet shall not be required to provide any refund.
(d) Protonet may terminate this Subscriber Agreement as follows:
(1) For any reason by providing 30 days advance notice to Customer.
(2) In the event of a material breach by Customer or one of Customer’s End Users, no less than five (5) days after providing notice to Customer describing the breach, unless Customer corrects the breach within this time.
(3) Without notice if (i) required by law, or (ii) reasonably necessary to protect Protonet from liability, as determined by Protonet in its commercially reasonable discretion.
(4) If the Service becomes, or in Protonet’s reasonable judgment is likely to become, the subject of a claim of infringement, then Protonet may: (i) obtain the right, at Protonet’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Service so that it is no longer infringing. If Protonet, in its commercially reasonable judgment, determines that none of the above options are commercially reasonable, then Protonet may suspend or terminate Customer’s use of the Service and provide Customer a pro rata refund of any prepaid fees.
(e) Upon the effective date of termination:
(1) Protonet shall have no further obligation to allow Customer or Customer’s End Users to use the Service.
(2) Customer acknowledges that deleted Customer Content cannot be restored by Protonet, and that Customer is responsible for backing up Customer’s own Customer Content.
(3) The remaining terms of this Subscriber Agreement shall survive termination and remain in effect for the time needed to fulfill the intent of the parties as expressed in this Subscriber Agreement.
6. Exclusion of Warranties
(a) Customer expressly understands and agrees that Customer’s use of the Service is at Customer’s sole risk and that the Service is provided “as is” and “as available.”
(b) Protonet does not represent or warrant that Customer’s use of the Service will be uninterrupted, timely, secure from cyberattacks, or free from error.
(c) Protonet’s policy is to back up any Service-related data (including Customer Content) once every 24 hours. Nevertheless, Protonet does not warrant that any Customer Content will be backed up or available to Customer. Customer is responsible for Customer’s own data backup and recovery system.
(d) Protonet does not warrant or support any third party service or application (for example, a service or application that utilizes the Protonet API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
(e) Protonet further expressly disclaims all warranties of any kind, whether express or implied (including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement) regarding the Service.
(f) No advice or information, whether oral or written, obtained by Customer from Protonet shall create any warranty not expressly stated in the Subscriber Agreement.
(g) In the event that any applicable law does not permit the exclusion of some or all of the above implied warranties to apply to Customer, the above exclusions will apply to the fullest extent permitted by law.
7. Limitation of liability
(a) Customer expressly understands and agrees that Protonet (and its officers, directors, agents, employees, subsidiaries, affiliates, and licensors) shall not be liable to Customer for:
(1) Any indirect, incidental, special, consequential or exemplary damages which may be incurred by Customer, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), loss of business opportunities, or any loss of goodwill or business reputation.
(2) Any loss or damage which may be incurred by Customer as a result of Customer’s failure to keep Customer’s passwords and account details secure and confidential.
(3) Any loss or damage caused by hackers or others who gain unauthorized access to the Service. Although Protonet takes reasonable steps to safeguard and prevent unauthorized access to Customer Content and other data, Protonet cannot be responsible for the acts of those who gain unauthorized access. Customer assumes all risks relating the transmission or maintenance of Customer Content on the Service.
(4) Any loss or damage resulting from any of the following: internet failures, viruses or other malicious code, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, natural disasters, explosions, acts of God, war, terrorism, or governmental actions, or other events beyond Protonet’s control.
(b) In no event shall the total aggregate liability of Protonet (and its officers, directors, agents, employees, subsidiaries, affiliates, and licensors) to Customer under any cause of action or causes of action exceed $10,000.00.
(c) The limitations on Protonet’s liability (and the liability of Protonet’s officers, directors, agents, employees, subsidiaries, affiliates, and licensors) to Customer shall apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, and whether or not Protonet has been advised of or should have been aware of the possibility of any such losses arising.
(d) The foregoing limitations of liability shall apply to the fullest extent permitted by law.
Customer hereby agrees to indemnify, defend and hold harmless Protonet, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “Protonet Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses, including but not limited to reasonable attorney’s fees (together, the “Losses”), in connection with: (i) violation of this Subscriber Agreement or the Acceptable Use Policy by Customer or any of Customer’s End Users; (ii) any violation of a copyright, trademark, patent, trade secret, privacy, publicity, or other proprietary right of any third party by Customer or any of Customer’s End Users; (iii) any Customer Content or other data transmitted or received through the Service in connection with Customer’s account; or (iv) any taxes payable on account of Customer’s use of the Service (but not including taxes on account of Protonet’s income).
9. Export Restrictions
(a) Protonet makes no representations that the Service is appropriate or available for use in locations other than the United States. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that Protonet may transfer, store and process Customer Content in locations other than Customer’s country.
(b) The export and re-export of Customer Content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States, and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.
10. Interpretation. This Subscriber Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to California’s choice-of-law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. All terms and conditions of this Subscriber Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms and conditions to give them such effect. Unless the context clearly requires otherwise, all references in this Subscriber Agreement to the plural will include the singular, and all references to the singular will include the plural; all references to gender will include the masculine, feminine, and neuter genders; the words “shall,” “will,” or “agrees” are mandatory, and the word “may” is permissive; the word “or” is not exclusive; the words “includes” and “including” are not limiting; and the words “day” or “days” refer to calendar days. Headings are provided for convenience only and shall not be considered in interpreting this Subscriber Agreement.
11. Dispute Resolution, Attorneys’ Fees
(a) The parties agree to attempt in good faith to resolve any dispute arising out of or relating to the Service promptly by negotiation. All negotiations pursuant to this subsection are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. If the dispute cannot be resolved through negotiation, the parties agree to submit the dispute to mediation before resorting to litigation. Mediation shall take place in Contra Costa County, California. If the parties are unable to agree upon a mediator, the mediator shall be selected by JAMS pursuant to its rules as they then exist. Costs of mediation shall be borne equally by the parties, and each shall bear its own mediation-related attorneys’ fees. The provisions of California Evidence Code § 1115 -1128 shall apply to the mediation. Notwithstanding the foregoing, no party seeking injunctive relief or provisional remedies shall be required to submit such claims to mediation.
(b) For any dispute that cannot be resolved through mediation, the parties hereby consent to the jurisdiction of the State of California, and agree that any disputes relating to this Subscriber Agreement shall be resolved in the courts of the State of California, to the exclusion of any other jurisdiction, by judicial reference pursuant to the provisions of the California Code of Civil Procedure Section 638, et seq.
(c) Any party may commence a reference by sending a written demand for reference to the other parties. Such demand shall set forth the nature of the matter to be resolved by reference. The place of reference shall be Contra Costa County, California, unless otherwise agreed by the parties.
(d) The parties shall negotiate in good faith to agree upon a single referee. If the parties are unable to agree upon a referee, either party may seek to have one appointed pursuant to Sections 639 and 640 of the California Code of Civil Procedure. The referee shall then try all issues, whether of fact or law, and report in writing a finding and judgment thereon.
(e) The parties shall share equally all initial costs of reference. However, the prevailing party shall be entitled to reimbursement of attorney fees, expert witness fees, costs, and expenses incurred in connection with the reference (or litigation, if the parties waive their right to a reference) unless the party refused to first submit the dispute to mediation as required above.
(f) Judgment may be entered upon the referee’s final decision in accordance with applicable law in any court having jurisdiction thereof. The referee (if permitted under applicable law) or such court may issue a writ of execution or other applicable remedy to enforce the referee’s decision.
(g) The parties agree that each party shall have the right to cause an appeal to be taken from the judgment entered on the referee’s decision to an appellate court of competent jurisdiction in the same manner as a judicial appeal arising out of an order or judgment from the Superior Court of California in a civil action, and all of the same rules, rights and remedies shall be applied to both parties with respect to any such appeal (including matters of fact, matters of law, standards for review and substantive and procedural laws).
12. Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
13. Force Majeure. Except for payment obligations, neither Protonet nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, acts of God, cyber attacks, labor conditions, governmental actions, or interruption or failure of the Internet or any utility service.
14. Assignment. Neither this Subscriber Agreement, nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.
15. Notices. All notices between the parties shall be in writing and shall be deemed duly served when sent by email to the following email addresses:
For Customer: the email address provided by Customer in Customer’s account profile. Protonet is not responsible if an email fails to reach Customer because: (a) the notice gets caught by Customer’s SPAM filter; (b) Customer provides the wrong email address or fails to update Customer’s address; or (c) there are other communications issues beyond Protonet’s control that prevent email from reaching Customer.
For Protonet: __________________________.
16. Entire Agreement, No Waiver
This Subscriber Agreement is the entire agreement of the parties with regard to its subject matter. It supersedes all previous written and oral agreements and communications regarding its subject matter, and contains all of the covenants and agreements between the parties with respect to its subject matter. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
(a) Protonet may prospectively amend this Subscriber Agreement at any time. Whenever Protonet amends this Subscription Agreement, Protonet will notify Customer by sending an email with a link to the updated Subscription Agreement to the email address provided by Customer in Customer’s account profile. Any amendment shall take effect no less than 30 days after Protonet notifies Customer. Customer’s continued use of the Services following the effective date of any amendment to this Subscriber Agreement constitutes Customer’s acceptance of the amended version of the Subscriber Agreement.
(b) Protonet may update or modify the Service from time to time. For the avoidance of doubt, any revisions or new features shall be subject to the terms and conditions of this Subscriber Agreement.
Last updated: 07-21-2016