Terms & Conditions
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
Modifications to this Agreement: From time to time, ProScaler may modify this Agreement. Unless otherwise specified by ProScaler, changes become effective for Customer, Ambassador or Advisor upon renewal of the then-current Subscription Term or entry into a new Service Order Form after the updated version of this Agreement goes into effect. ProScaler will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service through any online provisioning, registration or order process or (b) the effective date of the first Service Order Form (SOF), as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
These Terms of Service (the “Agreement”) is entered into by and between ProScaler Inc., a Delaware corporation (“ProScaler"or “Provider”) and the person or entity placing an order for or accessing the Service (“Customer” or “you”). In consideration of the terms and conditions set forth below, the parties agree as follows:
1. Provision of Service. ProScaler will make the Services and Software available to Customer pursuant to this Agreement, the Supplemental Terms (where applicable), the applicable SOF, and the Documentation, and provide such Services in accordance with this Agreement, the BAA (if applicable), the Privacy Notice, and laws and government regulations applicable to ProScaler’ business, during each Subscription Term. During the Subscription Term, ProScaler grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the Service Plan or otherwise noted in the SOF, including the right to download, install and use the Mobile Apps in connection with the authorized use of the Services.
2. Responsibilities of Customer
a. Customer Account. Customer may need to register for an Account in order to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate and complete so that ProScaler may send notices, statements and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify ProScaler promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. ProScaler and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
b. Use Restrictions. Customer agrees to comply with the ProScaler Authorized Use Policy (as defined below) which is hereby incorporated into this Agreement. Customer further agrees not to use the ProScaler Technology (as defined below) to: (i) process data on behalf of any third party other than Customer’s Users and End Users; (ii) use the Service or ProScaler Technology in violation of applicable law (iii) store or transmit any content that infringes upon any third party’s intellectual property rights;
In addition, Customer will not: (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the ProScaler Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (v) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law ; (vi) falsely imply any sponsorship or association with ProScaler; (vii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of ProScaler Technology.
3. Customer Data
a. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the ProScaler Technology. Subject to the terms of this Agreement, Customer hereby grants to ProScaler and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Services, Software, Mobile Apps, and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to ProScaler under this Agreement. Customer agrees not to upload any Customer Data containing electronic patient health records or information (“ePHI”) unless Customer has entered into a business associate agreement with ProScaler, which will govern the parties’ respective obligations with respect to any ePHI uploaded by Customer to the Services, Software, or Mobile Apps (“BAA”). Upon mutual execution of a BAA, the BAA is incorporated by this reference into this Agreement and is subject to its terms. If Customer is permitted to submit ePHI data into the Service, Software or Mobile App, then Customer may submit such data to ProScaler and/or the Service only by uploading it as Customer Data. Unless a BAA is in place, ProScaler will have no liability under this Agreement for ePHI supplied by Customer or any User or End User, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations.
b. Data Security. The parties will comply with the terms of the DPA, which is incorporated into this Agreement by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. ProScaler will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. ProScaler measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that ProScaler and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA., and the Privacy Notice.
4. Intellectual Property
a. Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and ProScaler obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. ProScaler and its licensors retain all right, title, and interest in and to ProScaler Technology. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. ProScaler may freely use and incorporate into ProScaler’ products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to ProScaler’ products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by ProScaler in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
b. Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support and/or about Customer’s use of the Services, Software, ProScaler’ websites, ProScaler’ APIs, ProScaler GPPS, or the ProScaler marketplace (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, ProScaler may collect and use Usage Data to develop, improve, support, and operate its products and services. ProScaler may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the Service and in accordance with Section 8 (Confidentiality) of this Agreement. ProScaler may also utilize Customer Data for its internal business purposes and such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified. Customer may request that Customer Data be excluded for such purposes by submitting such an email request to support@ProScaler.ai.
c. Updates. ProScaler may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by ProScaler with respect to future functionality or features.
d. Other Services. ProScaler or other third parties may make available (for example, through the ProScaler Marketplace currently located at https://gp.ProScaler.ai/) or other forums, third-party products or services (“Third-Party Services”). These Third-Party Services may integrate with the Services and are not licensed by ProScaler pursuant to this Agreement, but are governed by the third-party provider’s terms and conditions and privacy policies that accompany them, which Customer must separately accept, and the ProScaler Marketplace User Terms. ProScaler does not warrant or support Third Party Services, unless expressly provided otherwise in an SOF. ProScaler is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party. The Service may contain features designed to interoperate with Third Party Services. ProScaler cannot guarantee the continued availability of such third-party Service features, and may cease supporting them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the Third-Party Service provider ceases to make the Third-Party Service available for interoperation with the corresponding Service features in a manner acceptable to ProScaler. Customer understands that ProScaler is not responsible for providing technical support for the Third-Party Services and that ProScaler is not responsible for the data hosting and data transfer practices followed by the providers of such Third-Party Services.
5. Fees and Payment
a. Fees and Payment. All charges associated with Customer’s Account (“Fees”) are set forth in the applicable SOF or Website. For credit card payments, the payment is due immediately upon receipt of invoice. Customer hereby authorizes ProScaler or our authorized agents, as applicable, to bill your credit card upon subscription to the Service(s) (and any renewal thereof). For payments through other accepted methods, payment is due and payable in full within thirty (30) days from the invoice date or as stated in the applicable SOF. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable SOF or Website. Unless otherwise set forth in the SOF, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below. During the Subscription Term, the Customer shall not reduce their Service Plan or User count.
b. Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from ProScaler, ProScaler may suspend Customer’s access to the ProScaler Technology, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.
c. Payment Disputes. ProScaler will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
d. Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent ProScaler is legally required to collect the same, will be itemized on the ProScaler invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that ProScaler receives the amount actually quoted and invoiced. If ProScaler has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides ProScaler with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Orders by Affiliates. Customer’s Affiliates may purchase Services directly from ProScaler by executing an SOF which is governed by the terms of this Agreement. Such SOF will establish a new and separate agreement between the Customer’s Affiliate and the ProScaler entity signing such SOF. If the Affiliate resides in a different country than Customer, then the SOF may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
f. Purchases from Channel Partners. Customer may procure use of any Services, Software, or Mobile Apps from a third-party authorized reseller of ProScaler, including third party marketplaces (“Channel Partner”) pursuant to a separate agreement with the Channel Partner. Customer’s use of any Services, Software, or Mobile Apps procured through a Channel Partner will be subject to the terms of this Agreement, and all fees payable (including all applicable taxes) for such use will be payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner. Customer understands and agrees that, if Customer purchased the Services, Software, or Mobile Apps subscriptions via a Channel Partner, service credits and refunds payable under this Agreement may be payable or applied by Channel Partner acting on behalf of ProScaler in proportion to the fees paid by Customer to the Channel Partner, and the discharge by the Channel Partner of such obligations will relieve ProScaler of the same under this Agreement.
6. Term, Termination and Suspension
a. Term. This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
b. Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term. ProScaler reserves the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
c. Suspension. ProScaler may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by ProScaler to prevent or address the introduction of Malicious Software (as defined in Section 9.b below), a security incident, or other harm to Customer, ProScaler, or ProScaler’ other customers. ProScaler will notify Customer of any such suspension. ProScaler will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or ProScaler Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
d. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event 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.
e. Free Trial Customers. Upon the expiration of Customer’s free trial, ProScaler may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Notwithstanding anything to the contrary in this Agreement ProScaler will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
7. Data Export. and Retention. Upon termination or expiration of this Agreement or any SOF for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs and other ProScaler Technology will terminate. ProScaler strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. ProScaler will make Customer Data available for export for fourteen (14) days from the effective date of the closure of the Customer’s Account due to: (i) the termination or expiration of this Agreement, or (ii) termination or expiration the applicable SOF (“Data Export Period”).Where Customer Data is retained by ProScaler and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact ProScaler within the Data Export Period to have ProScaler export Customer’s Customer Data. Beyond such Data Export Period, ProScaler reserves the right to retain Customer data for up to three (3) months before deleting all Customer Data in the normal course of operation except as necessary to comply with ProScaler legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Customer Data cannot be recovered once it is deleted. Customer may contact support@ProScaler.ai within the Data Export Period to export Customer Data.
8. Confidentiality. Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Warranties/Disclaimer/ of Warranties
a. Service Warranty. ProScaler warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, ProScaler will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if ProScaler is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than ProScaler or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
b. Malware Warranty. ProScaler warrants that the Services hosted by ProScaler will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of ProScaler or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Limitation of Liability
a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO PROSCALER IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).
c. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, PROSCALER AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
d. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
e. THE PARTIES AGREE THAT THIS SECTION 10 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.
a. Indemnification by ProScaler. ProScaler will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the ProScaler Technology as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by ProScaler (including reasonable attorneys’ fees) resulting from such IP Claim. ProScaler will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the ProScaler Technology by Customer, its Affiliates or Users; (ii) modification of the ProScaler Technology by anyone other than ProScaler or its representatives; (iii) or the combination, operation or use of the ProScaler Technology with other data, hardware or software not provided by ProScaler. If Customer’s use of the ProScaler Technology results (or in ProScaler’ opinion is likely to result) in an IP Claim, ProScaler may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by ProScaler, then either Customer or ProScaler may terminate Customer’s subscription to the Service, whereupon ProScaler will refund Customer, on a pro-rated basis, any Fees Customer has previously paid ProScaler for the corresponding unused portion. The sections above state ProScaler’ entire liability and Customer’s exclusive remedy with respect to an IP Claim.
b. Indemnification by Customer. Customer will defend ProScaler and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless ProScaler and its Affiliates from and against any damages and costs awarded against ProScaler and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, (ii) Customer’s or cites Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
c. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 11, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
a. Use of Third Parties for Payment Processing. ProScaler may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for ProScaler. Customer must notify ProScaler of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing ProScaler at support@ProScaler.ai.
b. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOFs), 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. Any attempted assignment in violation of this section will be null and void.
c. Entire Agreement. This Agreement, together with any SOF, the Privacy Notice, and Supplemental Terms, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and ProScaler, including but not limited to Customer registration forms and Purchase Orders, regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, the Supplemental Terms, or any SOF and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the SOF, third, the Supplemental Terms, and fourth, this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
d. Publicity Rights. ProScaler may identify Customer as a ProScaler customer in its promotional materials. Customer may request that ProScaler stop doing so by submitting an email to legal@ProScaler.ai at any time. Please note that it may take us up to thirty (30) days to process a request.
e. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
f. Survival. Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 8 (Confidentiality), 9.c (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12.c (Entire Agreement), 12.f (Survival), 12.g. (Notices), 11.j (Governing Law) and 12.k (Dispute Resolution) and 13 (Definitions) will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
g. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the SOF; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to ProScaler is: ProScaler Inc., 39055 Hastings St, Ste 202A, Fremont, CA 94538 with a copy to legal@ProScaler.ai by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
h. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify ProScaler at legal@ProScaler.ai.
i. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited, acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all SOFs on written notice to the non-performing party. If ProScaler is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates this Agreement and all SOFs, then ProScaler will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
j. Governing Law. This Agreement is governed by the laws of the State of Delaware without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware, for any claims or dispute relating to this Agreement.
k. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in Delaware. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
l. Export Compliance and Use Restrictions. The Services and other Software or components of the Services which ProScaler may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, Software, and such other components by Customer and Users. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any Export Control Laws, (iv) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Customer’s Users are located. Customer further agrees that Customer will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service and other Software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws.
m. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.
“Affiliate” or “Subsidiaries” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Authorized Use Policy” means, the ProScaler authorized use policy
“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.
“Data Claims” means any claims arising from either (a) a party’s breach of Section 3 (Customer Data), Section 8 (Confidentiality), the DPA, the BAA (if applicable), or the, Privacy Notice where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).
“Data Processing Addendum” or “DPA” means, ProScaler’ Data Processing Addendum
“Documentation” means, the then-current, generally available user documentation provided by ProScaler detailing the functionalities of the Software and the Services.
“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.
“ProScaler Technology” means, (i) the Services, Software, Mobile Apps, Documentation, ProScaler’ APIs, ProScaler’ website(s) and any content published on the ProScaler’ websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) ProScaler’ Confidential Information and (iv) any modifications or derivative works of the foregoing.
“Marketplace User Terms” means, the ProScaler Marketplace User specific terms
“Mobile App” means, the ProScaler-branded Software applications provided by ProScaler to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).
“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).
“Privacy Notice” means, ProScaler’ privacy notice.
“Professional Services Agreement” or “PSA” means, ProScaler’ professional services agreement
“Service Order Form or SOF” means, (i) any service order referencing this Agreement and executed by Customer and ProScaler, or (ii) any online ordering document or process completed by Customer, including any online registration through a website, each of which detail, the Services subscribed to and corresponding Service Plans, the number of Users authorized to use the Services, Fees payable to ProScaler, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change order forms.
“Services” means, the ProScaler software-based service offerings identified on the SOF and any Updates, including any Software, API or Documentation made available by ProScaler with such offering, but excludes any applications or APIs separately provided by third parties.
“Service Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.
“Software” means the generally available software provided by ProScaler in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.
“Subscription Term” means, the period stated on a SOF during which Customer subscribes to the Services.
“Supplemental Terms” means, the Services specific terms
“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by ProScaler to all subscribing customers, but excludes separately priced new products or modules.
“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.