Effective Date: December 20, 2017

 

PRODSMART TERMS OF USE

 

By entering into a purchase order form or using or accessing any software services via the website or otherwise (“Services”) and provided by PRODSMART, INC. (hereinafter “PRODSMART”), whether as an end user or customer of the Services, you agree on behalf of your employees, contractors, agents and representatives (“You”) to be bound by these Terms of Use.

 

  1. LICENSE GRANT

 

  • All intellectual property in connection with the Services shall be the sole and exclusive property of PRODSMART. In connection with the Services, PRODSMART grants You a non-exclusive, revocable, limited and non-transferable right and license for the duration of the Agreement (the “Term”) to use the Services in accordance with any order form or other written documentation provided by PRODSMART.  No other rights are granted to You except as otherwise provided herein.  The Services are licensed herein and not sold.  You agree at all times to comply with all applicable laws as well as PRODSMART’s privacy policy.  You are at all times responsible for the actions taken and security in connection with Your account.  If at any time PRODSMART believes You are in violation of these Terms of Use, any applicable laws, or PRODSMART’s privacy policy, PRODSMART reserves the right in its sole discretion to terminate Your access to the Services without notice thereof.
  • During the Term, You agree to provide PRODSMART with a non-exclusive, non-transferable and limited license to reference Your trademarks and logos on PRODSMART’s website and in marketing materials. You represent and warrant that You have all rights to such logos and trademarks, and You will indemnify PRODSMART from any claims, damages, losses or costs in connection with the infringement of any third party rights resulting from reference to such logos or trademarks.

 

  1. RESTRICTIONS AND RESPONSIBILITIES; YOUR INDEMNIFICATION OBLIGATIONS

 

2.1.  You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms related to the Services; modify, translate, or create derivative works based on the Services; or, use the Services for timesharing or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2.   You hereby agree to indemnify, defend and release PRODSMART against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action (“Claims”) that arises from Your acts or omissions, Your violation of these Terms of Use, any injury to persons or property, including any Equipment as defined below, as a result of your usage of the Services, any activity performed on Your account, or any alleged violation of any laws by You.

 

2.3.  You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, devices, tablets, hardware, servers, software, operating systems, networking, or servers (collectively, “Equipment”).

  1. CONFIDENTIALITY; PROPRIETARY RIGHTS

 

3.1.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of the Disclosing Party includes any non-public information, regardless of whether or not marked as “confidential” regarding any technical information, features, source code, object code, functionality and performance of the Services. Your proprietary Information includes non-public data provided by You to PRODSMART to enable the provision of the Services (“Your Data”); provided however, to the extent Your Data is aggregated in anonymous form, such data shall not be considered Proprietary Information and may be disclosed or be used by PRODSMART for internal business purposes or disclosed to third parties. The Receiving Party agrees: (i) not to use or divulge to any third person any such Proprietary Information except to contractors or agents performing services under this Agreement; and, (ii) the Receiving Party

Agrees to take reasonable precautions, including industry standard security measures, to protect Proprietary Information from the Disclosing Party.  The foregoing obligation to maintain the confidentiality of the Proprietary Information shall survive any termination or expiration of this Agreement.

 

Proprietary Information shall not include any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law provided the Receiving Party promptly notifies the Disclosing Party of such requirement in order for the Disclosing Party to obtain a protective order.

  1. PAYMENT OF FEES

 

4.1. If You are the customer, You will pay PRODSMART the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). PRODSMART reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time, upon sixty (60) days prior notice to Customer (which may be sent by email).  If You do not accept any increase in the Fees initiated solely by PRODSMART, You may terminate this Agreement with thirty (30) days’ notice.  If You believe that PRODSMART has billed You incorrectly, You must contact PRODSMART no later than sixty (60) days from the date of the invoice in order to receive an adjustment or credit.  After such time, the invoice shall be deemed correct, and You will have waived any right to dispute such invoice.

 

4.2.  If You are the customer, full payment for an invoice is due in accordance with the terms of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services other than taxes based on Your net income.

 

  1. TERM AND TERMINATION

 

5.1.  Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2.  In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such beach within thirty (30) days.  You will pay in full for the Services up to and including the last day on which the Services are provided.  Upon any termination, PRODSMART will make all Your Data available to You for electronic retrieval for a period of thirty (30) days.  All sections of this Agreement which by their nature are intended to survive will remain in full force and effect following termination, including but not limited to accrued rights to payment, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.

 

  1. WARRANTY AND DISCLAIMER

 

PRODSMART represents and warrants that PRODSMART has all rights, title and interest in the Services.  You represent that you are in compliance with all applicable laws, and You have authority to enter into these Terms of Use and use the Services.  EXCEPT AS PROVIDED HEREIN, PRODSMART DOES NOT RESPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE SERVICES WILL BE COMPATIBLE ON ANY FORM OF EQUIPMENT.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND PRODSMART DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.

 

  1. INDEMNITY

 

PRODSMART shall hold You harmless from liability for third parties resulting from infringement by the Service of any copyright or trademark, provided PRODSMART is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement.  PRODSMART will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by PRODSMART, (ii) made in whole or in part in accordance with Your specifications, (iii) that are modified after delivery by PRODSMART, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Your use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by PRODSMART to be infringing, PRODSMART may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for You a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Your rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

 

  1. LIMITATION OF LIABILITY

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT AS OTHERWISE PROHIBITED BY LAW, PRODSMART AND ITS OFFICERS, AFFILIATED ENTITIES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR EQUIPMENT, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PRODSMART’S REASONABLE CONTROL; OR, (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO PRODSMART FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PRODSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. FORCE MAJEURE

 

Except for any payment obligation, neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, server failure, loss of internet connectivity, power surges or failure, inclement weather, acts of God, acts of government, flood, fire, civil unrest, or strikes.  Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay caused by such force majeure event.

 

  1. MISCELLANEOUS

 

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by You except with PRODSMART’s prior written consent.  PRODSMART may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.  This Agreement may be modified solely by PRODSMART without prior written notice to You, provided any amendments to this Agreement shall be available on PRODSMART’s website.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind PRODSMART in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; the day after notice is sent, if sent for next day delivery by recognized overnight delivery service; and within three (3) business days, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed exclusively by the laws of the State of California, without regard to its conflicts of laws rules.  Any dispute shall be arbitrated in the United States in accordance with the American Rules of Arbitration.  The parties agree to equally share the costs of arbitration subject to the prevailing party recovering its attorney’s fees and costs.  Each party hereby waives any right to a court trial except to obtain injunctive relief in the event of breach of these Terms of Use for which a monetary remedy is not readily available.  In the event, either party seeks injuntive relief, such relief may be sought without posting a bond in the state or federal courts of San Francisco, California in accordance with the laws of the State of California.