by ProSolutions Software, Inc.
Updated as of 01.06.17
ADDENDUM “1” PAIRED MOBILE APPS
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED,” COMPANY AND EACH USER USING COMPANY’S ACCESS CREDENTIALS AGREES TO THESE TERMS OF SERVICE.
These Terms of Service constitute an agreement (“Agreement”) by and between PROSOLUTIONS SOFTWARE, INC., (“PSI,” “We,” or “Our”), a California corporation, and each user of PSI’s Transcend Online Services (“User,” “Company,” “You,” or “Your”), collectively referred to as the “Parties.”
Applicability. Use of the Services by any person, whether an authorized agent of Company or not, is subject to this Agreement. Failure to comply with the terms and conditions of this Agreement may have legal consequences. By accessing, viewing or using all or any part of the Digital Properties, you are accepting the terms and conditions of this Agreement. If you do not agree to any part of this contract, you will be deemed to have rejected the Agreement and you will not be able to access Our Digital Properties or use Our Services.
Sales Order. The Sales Order provided to Company and accepted by Company is incorporated by reference into this Agreement. The Sales Order includes Company’s Subscription Fees and Initial Term for use of the Services, in addition to other information regarding the sale of services by PSI to Company.
HIPAA. PSI supports Companies who are subject to the requirements of the Health Insurance Portability and Accountability Act (“HIPAA”). Under HIPAA, certain information about a person’s health or healthcare services is classified as Protected Health Information (“PHI”). Company must enter into a Business Associate Agreement (“BAA”) with PSI if they are subject to HIPAA and wish to use the Services with PHI. Company is solely responsible for determining whether they are subject to HIPAA requirements. If Company has not entered into a BAA with PSI, Company is not permitted not use any of PSI’s Digital Properties in connection with PHI.
“Access Credentials” means any Microsoft Remote Desktop login name and password combination granted by PSI to Company for access to the Digital Properties.
“Authorized User” means any person authorized by Company to access the Services and Digital Properties with Company’s Access Credentials. Even if you are not authorized by Company or PSI to access the Services and/or Digital Properties, you are still bound by the terms of this Agreement.
“Billing Period” means the period that is covered by a single Subscription Fee payment. The Billing Period shall be one (1) calendar month unless otherwise agreed to by Parties in writing.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by Company into the Transcend program.
“Company Data” means all data entered or stored by Company using the Services. Company Data includes Cardholder Data, End User Data, Company Public Data, and Company Private Data. Company Data, excluding Cardholder Data, is the property of Company as stated in Section 4.A.a. below.
“Compiled Data” means data from the utilization and use of PSI’s Transcend program and Digital Properties by Company and End Users that is created by PSI for the commercial purpose of, among other things, producing indices, statistics, summaries, and industry reports. The Compiled Data will be presented in an anonymous, aggregate manner only and will not reveal proprietary or personally identifying information about Company or Company’s End Users.
“Digital Properties” means and includes the Services, PSI remote servers, and any software/hardware included in PSI’s virtual private cloud.
“Effective Date” means the date of latest execution of a Sales Order form that incorporates by reference the terms and conditions of this Agreement. If a Sales Order form is not completed between Company and PSI for any reason, the Effective Date shall mean the date Company agreed to these TOS by clicking “Accepted and Agreed” when first accessing the Digital Properties and/or the Services.
“End User” means the business or individual scheduling or purchasing products and/or services from Company, or communicating with the Company, through the Services.
“End User Data” means data about an End User that Company or End User furnishes to PSI through data importation or entry into the Transcend program or anywhere within PSI’s servers or Digital Properties.
“Initial Term” means the initial length of the subscription to the Service as specified on the Sales Order.
“Integrated Merchant Account” means an optional service from an approved third party provider that allows for processing of credit card and Automatic Clearing House (“ACH”) payments through the Transcend program. The ability to process credit card and ACH payments through Transcend is optional and not required to use the Services. If Company would like to process ACH payments through PSI’s Digital Properties, Company must enter into a separate contract with an approved third party provider.
“PCI DSS” means the requirements of the Payment Card Industry Data Security Standard as detailed on https://www.pcisecuritystandards.org/ and as may be updated from time to time, at any time.
“Renewal Term” means any extension of the Service following the end of the Initial Term or any other Renewal Term pursuant to Section 10 below.
“Sales Order” means the document sent to Company and accepted by Company for ordering the Services on a subscription basis. The Sales Order sets forth the subscription price of the Services and the Initial Term.
“Services” means the Services provided to Company under these TOS, which consist of the cloud hosted Transcend program and various online services offered through use of PSI’s remote servers. We have the right to amend or modify the Services from time to time, at any time, by giving Company reasonable notice.
“Subscription Fee” means the fee to be paid by the Company to PSI for access and use of the Services, as set forth in the Sales Order form.
“Subscription Term” means the period during which Company purchases the Subscription Services, as set forth in the applicable Sales Order form.
A. Services. PSI’s online software service, Transcend Online (“Services”), allows Company to manage their business with PSI’s Transcend program with features including, but not limited to, appointments, inventory, point-of-sale, client information, reports, payroll, marketing, and online retail, gift certificates and appointments, from remote computer servers. PSI will operate, maintain and provide the Services to Company pursuant to its standard policies and procedures then in effect. PSI continuously improves the Services by regularly releasing updates that modify, improve, and update the Services and PSI reserves the right to replace, modify, and/or upgrade any of the Services at any time in PSI’s sole discretion. Any replacement, modification, or upgrade to the Services shall be treated as part of the Services. The Services do not include any third party services or software including, but not limited to, credit card processing and SMS text messaging services.
B. Hosting. Transcend Online is a cloud hosted software service. PSI will provide all hardware and software necessary for the operation and maintenance of the host computer system. PSI reserves the right to change the configuration of our host computer system and change or delete equipment or software from time to time and at any time.
C. Technical Requirements. Company’s use of the Services requires a high-speed Internet connection and modern smartphone and/or modern computer. For specific technical requirements, visit www.prosolutionssoftware.com. Company shall maintain the functional operation of all computers, mobile devices, workstations, networks, and Internet connections used to access the Services in order to ensure proper operation of the Services, including installation, upgrade and/or operation of any associated operating system according to applicable manufacturer specifications and recommendations.
D. SMS Text Messaging. Access to SMS text messaging services is provided by PSI through a third party provider. Company shall at all times comply with FTC and FCC rules and regulations, applicable state laws, and any other applicable laws and/or regulations when using the SMS text messaging service. Company shall also adhere to the Mobile Marketing Association policies, guidelines and codes of conduct regarding SMS mobile marketing. Company shall ensure that all content and materials of any transmitted SMS text message does not and will not contain material that: (1) is inappropriate, such as profane language, illicit drug references, or promoting illicit drug use; (2) is unlawful, obscene or defamatory; (3) violates intellectual property rights or other third party rights; (4) is false, misleading, or likely to mislead or deceive; (5) contains sexually explicit images; (6) promotes violence or discrimination; or (7) facilitates illegal activities. Company must provide End User with information on how to “opt-out” of receiving messages from Company in any message sent to any recipient. For commercial messages that primarily advertise or promote a commercial product or service, the first message shall include, at a minimum, all of the following items: (1) Company identifier/name; (2) short description of the service; (3) number and frequency of messages; (4) charging information; (5) opt-out instructions; (6) contact information; and (7) where to get assistance/URL.
Company name. Max 6msgs/wk; Std msging chrgs apply; PLS rply “GO” 2 confirm u want discount offers. STOP=Opt-out. Visit [insert URL] for more information.
Company is solely responsible for providing all information to End Users necessary to enable such End Users the ability to opt-in to receive any commercial messages and to enable End Users to opt-out if they no longer wish to receive text messages. Company represents and warrants that it will only send and continue to send text messages to persons that have opted-in to receive such text messages and have not subsequently opted out. Company shall not access or use any third party mailing lists or otherwise prepare or distribute any unsolicited text messages. Contravention of any of the foregoing may result in termination of this Agreement and/or disablement of Company’s short code on supporting wireless carriers.
E. Email Messaging. Company shall at all times comply with FTC and FCC rules and regulations, applicable state laws, and any other applicable laws and/or regulations when using the email function of the Services. Company shall ensure that all content and materials of any transmitted email message does not and will not contain material that: (1) is inappropriate, such as profane language, illicit drug references, or promoting illicit drug use; (2) is unlawful, obscene or defamatory; (3) violates intellectual property rights or other third party rights; (4) is false, misleading, or likely to mislead or deceive; (5) contains sexually explicit images; (6) promotes violence or discrimination; or (7) facilitates illegal activities. Company shall also ensure that use of the email function complies with the following: (1) all email messages contain accurate “from” lines, relevant, non-deceptive subject lines, a legitimate physical address of the publisher/advertiser, and a visible and operable unsubscribe mechanism; (2) End User opt-out requests are honored within 10 business days; and (3) opt-out lists are only used by Company for compliance purposes. Company is solely responsible for providing all information to End Users necessary to enable such End Users the ability to opt-out if they no longer wish to receive email messages. Company represents and warrants that it will only send and continue to send email messages to persons that have not opted out of receiving such email messages. Contravention of any of the foregoing may result in termination of this Agreement.
F. Service Level Agreement (SLA).
a. Service Commitment. The Services are hosted on PSI’s virtual private cloud. PSI will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage of at least 99%. “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during a calendar month in which the Services are unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Exclusions as defined below. In the event PSI does not meet the Service Commitment and Company is unable to access the Services, Company will be eligible to receive a Service Credit from PSI as described below.
b. Service Credits. Service Credits are calculated as a percentage of the Subscription Fees paid by you (excluding one-time payments such as upfront payments) for use of the Services. For a Monthly Uptime Percentage that is less than 99% in a given calendar month but equal to or greater than 95%, the Service Credit Percentage is 10% of the monthly subscription fee paid for that given month. For a Monthly Uptime Percentage that is less than 95% in a given calendar month, the Service Credit Percentage is 30% of the monthly Subscription Fee paid for that given month. PSI will only apply any Service Credits against future Subscription Fees otherwise due from Company. Service Credits will not entitle Company to any refund or other payment from PSI. Service Credits may not be transferred or applied to any other account. Your sole and exclusive remedy for any unavailability, non-performance, or other access failure by PSI to provide the Services in any given month is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
c. Service Credit Requests. To be eligible, a Service Credit request must be sent in writing to [email protected], received by PSI by the end of the second billing cycle after which the incident occurred, and must include: (i) the words “Service Credit Request” in the subject line; (ii) the dates and times of each incident that You claim the Services were unavailable; (ii) any information that documents errors and/or corroborates Your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks). If the credit request is confirmed by PSI, We will issue the Service Credit within one billing cycle following the month in which your request is confirmed. Your failure to provide the request and other information as required above will disqualify You from receiving a Service Credit and PSI shall have no further obligation to provide Company with Service Credits or any other remuneration.
d. Exclusions. The Service Commitment does not apply to any unavailability, suspension or termination of the Services: (i) that are caused by factors outside of PSI’s reasonable control, including, but not limited to, any force majeure event or Internet access problems; (ii) that result from any actions or inactions by You or any third party; (iii) that result from Your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within PSI’s direct control) including Your Integrated Merchant Account; (iv) that result from any maintenance as provided by PSI’s virtual private cloud provider; (v) arising from Our suspension and termination of Your right to use the Services in accordance with this Agreement; or (vi) Scheduled Maintenance conducted between the hours of 9:00 PM and 9:00 AM in the Pacific Time Zone for which Company receives at least forty-eight (48) hours prior notice. The Services Commitment does not apply to any unavailability, suspension or termination of any third party software or services including, but not limited to, credit card processing and/or SMS text messaging services.
A. Subscription Fees. PSI calculates and bills its charges and fees to Company on a monthly or annual basis pursuant to Company’s preference as stated in the Sales Order. If Company chooses a monthly subscription payment plan, Company shall provide to PSI valid, up-to-date and complete credit card information by the Effective Date. By agreeing to these Terms of Service and providing complete payment information, Company hereby authorizes PSI to bill Company’s credit card on file with PSI for the Subscription Fees payable on the first of each month if paying monthly. If Company elects a yearly subscription payment plan, PSI shall invoice the Company for the Subscription Fees then payable at least 30 days prior to the payment date and Company hereby agrees to pay invoices by the due date printed on such invoices.
B. SMS Text Messaging Fees. Subscription Fees include SMS an allotted amount of text messages that Company is permitted to send and receive each month through a third party vendor as set forth in the Sales Order. In the event that Company exceeds the SMS text messages allotted, Company shall be charged an additional fee as set forth in the Sales Order. By agreeing to these Terms of Service and providing complete payment information, Company hereby authorizes PSI to bill Company’s credit card on file with PSI for the SMS Text Messaging Fees payable on the first of each month.
C. Late Payment. Any payment not received within thirty (30) days after the applicable due date shall be considered a default under this Agreement and PSI shall be entitled to suspend or deactivate Company’s account, Company’s access to the Services, and/or use of the Digital Properties. PSI may not provide advanced notice of suspension or deactivation of Company’s account for late payment. If PSI has not received payment after sixty (60) days, PSI may terminate this Agreement.
D. Fee Changes. PSI reserves the right to increase the pricing of the Subscription Fees due each month from Company before any Subscription Term renewal provided such increase (i) shall be noted in PSI’s quote or other written communication issued at least thirty (30) days prior to the upcoming Subscription Term renewal date and (ii) shall not exceed PSI’s then-current standard pricing for such services. Company understands and is agrees that any increase in the number of Company operators, locations, devices or users may cause PSI to increase the monthly Subscription Fee due from Company according to the pricing structure in effect at that time.
E. Service Unavailability. In the event the Services are unavailable longer than the Monthly Percentage Uptime, except for unavailability caused by any Exclusions, PSI will issue Company such credits as are required by the SLA. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited upon termination of this Agreement. PSI is not required to issue refunds or to make payments against such credits under any circumstances including, without limitation, termination of this Agreement. CREDITS ISSUED PURSUANT TO THE SLA ARE COMPANY’S SOLE REMEDY FOR ANY UNAVAILABILITY OF THE SERVICES.
a. Company Data. Company retains all right, title, and interest in and to Company Data, excluding Cardholder Data. Company may access and copy any Company Data through use of the reporting and/or data mining feature of the Services unless access has been suspended or terminated pursuant to the terms of this Agreement. Company is solely responsible for the operation of the Services and maintenance of all information used in connection with the Services including, but not limited to, Company’s intellectual property and Company Data. Company shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Company Data. COMPANY WARRANTS TO PSI THAT YOUR COMPANY DATA DOES NOT VIOLATE APPLICABLE LAW OR THE RIGHTS OF ANY THIRD PARTY.
b. Cardholder Data. All right, title, and interest in each item of Cardholder Data shall be solely and exclusively owned by the End User who is personally identifiable from such item of Cardholder Data.
c. Compiled Data. Company acknowledges and agrees that title, ownership, intellectual property rights, and all other rights and interests in Compiled Data are owned solely by PSI and will be used commercially by PSI for the purposes of, among other things, producing indices, statistics, summaries, and industry reports. PSI agrees that Compiled Data will be presented in an aggregate manner only, and will not reveal proprietary or personally identifying information about Company or Company’s End Users.
B. Access, Use, & Legal Compulsion. Unless PSI receives Company’s prior written consent, PSI: (i) will not access or use Company Data collected through the Services from Company or other third parties other than as necessary to facilitate the Services or to create the Compiled Data; and (ii) will not give any third party access to Company Data. Notwithstanding the foregoing, PSI may disclose Company Data as required by applicable law or by proper legal or governmental authority. PSI will give Company prompt notice of any such legal or governmental demand and reasonably cooperate with Company in any effort to seek a protective order or otherwise to contest such required disclosure, at Company’s expense.
C. Retention & Deletion. PSI will retain any Company Data on its Digital Properties for a minimum of 30 days after termination of this Agreement, after which PSI shall have the right to permanently delete any and all Company Data off of its Digital Properties. Company acknowledges and agrees that it is Company’s sole responsibility to copy, transfer and/or retrieve any Company Data off of the Digital Properties prior to termination of this Agreement.
D. Held Harmless. PSI will not be held liable for the integrity of Your Company Data. It is Your responsibility to ensure that Your Company Data does not violate any laws. It is also up to you to notify PSI of, and resolve, any disputes that may arise with third parties concerning Company Data.
E. Disclosure of Security Breach. Following PSI’s discovery or notification of any breach of the security of the Digital Properties, We shall disclose such breach to You: (i) If PSI reasonably believes Your Company Data has been acquired by an unauthorized person; and (ii) if PSI reasonably believes any Cardholder Data has been acquired by an unauthorized person. Such disclosure shall be made expediently and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures reasonably necessary to determine the scope of the breach and restore the reasonable integrity of PSI’s Digital Properties.
5. INTELLECTUAL PROPERTY (“IP”)
A. PSI’s IP. PSI retains all right, title, and interest in and to the Services including, without limitation, all copyright, trade secret, patent, or other intellectual property rights related to the software used in connection with the Services and all logos and trademarks reproduced through the Services. This Agreement does not grant Company any intellectual property rights in or to the Services or any of its components thereof, except the limited and temporary right to use them as necessary for Company’s business operations in accordance with the terms of this Agreement. No content on the Digital Properties, except Company Data, may be copied for any purpose without the express written permission of PSI.
B. Company’s IP. Company assumes sole responsibility for the protection of any patents, copyrights, trade secrets, trademarks, service marks, trade names and other intellectual property entered, uploaded, or displayed on the Digital Properties, wholly or partially owned by Company or which Company is authorized to use or display. Company hereby grants PSI authorization to list Company as a PSI customer and include Company’s name and trademarks in PSI’s public directories and websites. Company may request PSI remove Company’s name, information, and/or trademark from public display at any time.
C. Infringement. Company’s use of infringing content in connection with PSI’s Digital Properties shall constitute a breach of this Agreement. PSI may remove, suspend, terminate access or take other appropriate action against Companies who infringe the intellectual property or other rights of others.
D. DMCA Notice. Any owner, or authorized agent, of exclusive rights in any intellectual property, may send PSI a notification of claimed infringement by submitting a notification containing the following information as required under the Digital Millennium Copyright Act (17 U.S.C. § 512):
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that has allegedly been infringed;
b. Identification of the copyrighted work or trademark claimed to have been infringed;
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PSI to locate such material;
d. Information reasonably sufficient to permit PSI to contact you, such as an address, telephone number, and e-mail address;
e. A statement made in good faith belief that the use of the subject material in the manner complained of is not authorized by the owner, its agent, or the law; and
f. A statement, under penalty of perjury, that (i) the information in the notice is accurate and (ii) that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
A. Standard Services License. On the condition that Company complies with all obligations under the Sales Order and subject to all the terms and conditions of this Agreement, PSI grants Company a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license to access, use, display, and run the Services for use in connection with Company’s business. Company agrees that the Services are licensed on a per Company, per location basis and Company’s rights to access and/or utilize PSI’s Digital Properties may not be shared between multiple Company locations or between Company and any third party, except as otherwise authorized by Company in accordance with the terms and conditions contained in this Agreement. Company shall ensure that the Access Credentials provided by PSI are kept confidential from any and all third parties and shall inform PSI immediately in the event that the confidentiality of Company’s Access Credentials has been compromised.
B. Limitation of Rights Granted. PSI reserves all rights not expressly granted in these TOS, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Our Digital Properties and all related items, including any and all copies made of the Transcend program.
C. Restrictions. Company shall not, in whole or in part, directly or indirectly: (i) Reverse engineer, disassemble, decompile, translate, reproduce, modify, alter, or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure, or organization of the Digital Properties or reduce the Digital Properties to a human-perceivable format; (ii) Remove any copyright notices, logos, identification, or any other proprietary notices from the Digital Properties; (iii) Make any change to the Digital Properties or create any derivative works thereof; or (iv) Publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the Digital Properties or any part thereof.
D. Third Party Software. The Digital Properties may contain copies of third party software applications, installed for Company’s convenience. Company shall not access, use or deploy any third party software applications on the Digital Properties unless Company has obtained a license from the third party company to access, use or deploy said applications. If Company accesses any third party applications, Company warrants to PSI that they have obtained or already possess the proper license to access said applications. Company hereby agrees to hold PSI harmless from any and all claims from any third party companies regarding any unlawful use by Company of any third party applications installed on the Digital Properties.
7. REPRESENTATIONS AND WARRANTIES
A. Company’s Identity. Company represents and warrants: (i) that it has accurately identified itself to PSI and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law. You represent and warrant that You have the authority to bind Company and its affiliates to these TOS, in which case the terms “Company,” “You” or “Your” shall refer to such legal entity and its affiliates. If You do not have such authority, You do not have the legal capacity or right to agree to these TOS and may not use any of Our Digital Properties or content.
B. Right to Do Business. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
A. SERVICES PROVIDED “AS IS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND ANY APPLICATIONS OR THIRD-PARTY CONTENT MADE AVAILABLE ON OR THROUGH THE DIGITAL PROPERTIES ARE PROVIDED ON AN “AS IS” BASIS, WITH ALL FAULTS. PSI MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR DIGITAL PROPERTIES.
B. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PSI HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ABSENCE OF VIRUS OR OTHER HARMFUL COMPONENTS, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF PSI. NO COMMUNICATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PSI, REPRESENTATIVES OF PSI, OR THROUGH OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT.
C. USE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICES OR ANY ASSOCIATED WEBSITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH INFORMATION, MATERIAL, OR DATA.
9. LIMITATION OF LIABILITY
A. LIMITED LIABILITY. IN NO EVENT WILL PSI BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, OR LOSS OF GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR COMPANY’S USE OF THE SERVICES. “ARISING OUT OF OR RELATED TO” INCLUDES, WITHOUT LIMITATION TO THIS CLAUSE’S BROADER LANGUAGE, THE UNAVAILABILITY OF THE SERVICES OR ANY FUNCTION THEREIN, LOSS OF DATA, OR ANY COMPLICATION RESULTING FROM PROGRAMMING “BUGS” OR ERRORS.
B. TYPES OF ACTIONS. THE LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF ACTION BROUGHT AGAINS PSI INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, STRICT PRODUCT LIABILITY, SIMPLE AND GROSS NEGLIGENCE, BREACH OF WARRANTY OR GUARANTEE, NEGLIGENT MISREPRESENTATION OR OMISSION, EQUITABLE CLAIMS OR OTHER CLAIMS EVEN IF PSI IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF COMPANY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
C. CARDHOLDER DATA. PSI EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS RECEIPT AND ENCRYPTION BY PSI SERVER(S). THE EXCLUDED DAMAGES SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. THIS SECTION SHALL BE INTERPRETED AND APPLIED SUBJECT TO THE LIMITATION OF PSI’S LIABILITY SET FORTH BELOW.
D. PCI COMPLIANCE. PSI EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RESULTING DIRECTLY OR INDIRECTLY FROM COMPANY’S HANDLING OF CARDHOLDER DATA. IN CONNECTION WITH COMPANY’S USE OF THE SERVICES, COMPANY UNDERSTANDS AND AGREES THAT PSI STRONGLY RECOMMENDS YOU SHOULD FOLLOW THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (PCI DSS), AS SAME MAY BE UPDATED FROM TIME TO TIME, WHEN HANDLING CARDHOLDER DATA. COMPANY FURTHER UNDERSTANDS AND AGREES THAT TRANSMITTING CARDHOLDER DATA ON THE INTERNET MAY INVOLVE CERTAIN SECURITY RISKS AND ABIDING BY THE PCI DSS MAY REDUCE SUCH RISKS.
E. THIRD PARTY PROVIDERS DISCLAIMER. COMPANY UNDERSTANDS AND AGREES THAT ALTHOUGH PSI PROVIDES REFERENCES AND ACCESS TO VARIOUS SERVICES, INCLUDING, BUT NOT LIMITED TO, SMS TEXT MESSAGING SERVICES AND CREDIT CARD PROCESSING COMPANIES FOR INTEGRATED MERCHANT ACCOUNTS, PSI DOES NOT EVALUATE, AND IS NOT RESPONSIBLE FOR, ANY SERVICES PROVIDED BY ANY THIRD PARTY. NOTHING IN THIS AGREEMENT SHALL RESULT IN PSI BEING LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION LOSSES, OR LOSS OF GOODWILL RESULTING FROM A REFERRAL TO ANY THIRD PARTY SERVICE PROVIDER.
F. EXCLUSIVE REMEDY. EXCEPT FOR SERVICE UNAVAILABILITY ADDRESSED IN THE SLA ABOVE, YOU AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ASSERTED AGAINST PSI ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE TO RECOVER DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO THE AMOUNT OF SUBSCRIPTION FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM EVEN IF THE REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE OR DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR DAMAGES.
G. APPLICATION. Limitation of PSI’s liability pursuant to this section shall apply to the maximum extent permitted by applicable law. Some or all of the limitations or exclusions contained in this section may not apply to you if your state, province, or country does not allow any such exclusion or limitation.
H. ATTORNEYS FEES. Any party who unsuccessfully seeks to avoid this agreement’s limitation on liability through claims of intentional misconduct or otherwise shall be liable to PSI for the reasonable attorneys’ fees and expenses incurred in defending such claims.
10. TERM AND TERMINATION
A. Agreement Term. This Agreement shall commence on the Effective Date and shall continue for the Subscription Term and each renewal thereof until it either expires or is terminated pursuant to this Agreement or Sales Order agreed to by the Parties.
B. Subscription Term; Renewal; Early Termination. Each Subscription Term commences on the first day of the calendar month immediately following the date of execution of the applicable Sales Order form and continues for the period set forth in the Sales Order form. The Subscription Term shall automatically renew in successive and consecutive periods of the same length as originally purchased, unless Company provides written notice of non-renewal at least thirty (30) days prior to the upcoming Subscription Term renewal date. PSI reserves the right to increase pricing for the Services applicable during a renewed Subscription Term, provided such (i) shall be noted in PSI’s quote or other communication issued at least thirty (30) days prior to the upcoming Subscription Term renewal date, and (ii) shall not exceed PSI’s then-current standard pricing for such Services. If Company elects to terminate this Agreement without cause during the Subscription Term, Company must issue no less than sixty (60) days’ prior written notice of such termination to PSI and the effective date of termination shall be the last day of the second calendar month following receipt of notification. By way of example, if Company issues notice of termination on May 18th, termination shall not be effective until July 31st.
C. Termination for Cause. This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party is declared bankrupt or insolvent.
D. Account Suspension. PSI may immediately suspend Company’s access to the Services in the event that (i) Company is engaged in, or PSI in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of this Agreement, any applicable law or third party right), or (ii) Company’s account is delinquent for more than ten (10) days from the original payment due date. PSI will notify Company prior to or contemporaneously to such suspension. PSI will use diligent efforts to limit any suspension only to the affected portions of the Services, and to promptly restore the Services upon satisfactory cure or resolution of the issues triggering such suspension.
E. Effect of Termination. Upon termination of this Agreement or Sales Order form, all rights and licenses granted by one party to the other under this Agreement will terminate, except with respect to Company Data in PSI’s possession, which PSI will make available to Company as a file within thirty (30) business days of termination if so requested by Company in writing at the time of termination. PSI reserves the right to withhold any Company Data in the event Company fails to pay any amount owed to PSI when due, for so long as such payment is unpaid. Company agrees and acknowledges that thirty (30) days after the effective date of termination, PSI has no obligation to retain the Company Data and may, unless legally prohibited, delete such Company Data in its systems or otherwise in its possession or under its control.
F. Survival. Section 1 (“Definitions”), Section 4 (“Data”), Section 5 (“Intellectual Property”), Section 6 (“Licensing”), Section 7 (“Representations and Warranties”), Section 8 (“Disclaimers”), Section 9 (“Limitation of Liability”), this Section 10 “F” (“Survival”), and Section 11 (“Miscellaneous”) shall survive notwithstanding expiration or termination of this Agreement.
A. Assignment. You may not assign or delegate any right or obligation under this Agreement without PSI’s prior written consent, which PSI may withhold at its sole discretion. PSI may require any proposed assignee of the Contract to enter into a new written agreement. We may assign or delegate any of Our rights or obligations under the Contract to any person or entity, and thereafter be relieved of all liability hereunder.
B. Severability. If any provision of this Agreement shall be held by a court, arbitrator, or other tribunal of competent jurisdiction to be unenforceable, the other portions of this Agreement shall remain in full force and effect. This Agreement shall be interpreted without regard to any presumption or rule requiring construction against the party that caused the Agreement to be drafted. Within these TOS, except where the context clearly otherwise requires, the singular shall include the plural and vice versa, and the words “include”, “includes” and “including” are deemed to be followed by the phrase “but not limited to”, “without limitation” or words of similar import.
C. Notices. All notices, requests, demands, and other communications shall be validly given if delivered in person, by facsimile transmission, by electronic mail, or by registered or certified mail addressed to the other party at the address provided in the Sales Order or in the signature block of these TOS, unless such party has notified the other party of a substitute contact information in writing.
D. Relationship. The Parties will be doing business at their own risk and for their own profit. Nothing in this Agreement shall constitute a joint venture, partnership, or agency relationship between Company and PSI or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
E. Compliance with Laws. You shall, at Your expense, comply with all laws, ordinances, rules, regulations and other requirements, including HIPAA and laws relating to the privacy, transmission and use of personal or confidential information and data, of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this Agreement.
F. No Informal Waivers. The failure of either party to exercise any right or enforce any provision of this Agreement, at any time or for any period of time, shall not be construed to be a waiver of that right or provision, or of the right of such party thereafter to enforce that right or provision.
G. No Third Party Beneficiary. The benefits and protections provided by this Agreement shall inure solely to the benefit of the Parties. This Agreement shall not be deemed to create any right in any person or entity who is not a party to this Agreement and shall not be construed in any respect to be a contract, in whole or in part, for the benefit of any third party.
H. Entire Agreement. The Parties agree that this Agreement constitutes the entire agreement between Company and PSI relating to the Services and supersedes all previous representations, understandings, and agreements, whether oral or written, or whether established by custom, practice, policy, or precedent, between the parties with respect to the subject matter of this Agreement. This Agreement shall not be modified except by the Parties’ written agreement, or by a change to this Agreement made as authorized in this Agreement.
I. Venue. This Agreement and any incorporated Sales Order is governed by the laws of the State of California. Any dispute between regarding arising out of or resulting from Company’s use of the Services, this Agreement, or any other dispute regarding the relationship of the Parties will be subject to the exclusive venue of the state and federal courts in the State of California.
J. Counterparts; Electronic Signatures. Each Sales Order incorporated into this Agreement may be executed in one or more counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. An electronic (scanned) copy of the executed Sales Order constitutes an original copy. The Parties agree that each Sales Order may be signed electronically, and that the electronic execution of this Agreement will bind the executing party to the terms hereof. Neither party may challenge the validity of this Agreement or any Sales Order as a result of the use of electronic execution and/or signatures.
Questions. All questions and requests for customer service or technical support should be directed to the PSI Customer Service Team by phone at (800) 710-3879 or by email at [email protected]