TERMS AND CONDITIONS

 1. TERMS AND CONDITION SAAS SERVICES AND SUPPORT

1.1 Definition of Services. “Services” shall mean a collaboration platform for companies to send and receive messages to customers and to organize communication.

1.2 Support. Support for the Services is described and attached as Exhibit A. Subject to the terms of this Agreement, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit A. The fee (“Fee”) for the Services as stated in the online “proposal and quote” or other submission form sent for purposes of creating an account (or in other written formats that my be adopted later) will be inclusive of the fees for Support (“Quote”).

1.3 Payment Terms. Unless otherwise agreed to by the Parties in writing, the Fee is due upon Customer initially receiving access to the Service or after any applicable trial period. Without prejudice to its other remedies, Company may charge interest on overdue payments from the due date until the date payment is received at one and one-half percent (1.5%) interest per month. In the event of nonpayment, Company may cease providing Services and terminate this Agreement in accordance with Section 4 of this Agreement. Company reserves the right to change the Fee or applicable charges and to institute new charges and Fee at the end of the agreed-upon term of the Service or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). 

1.4. Authorized Locations and Authorized Users. Services are provided depending on number of locations authorized by Customer. Customer certifies that it is requesting services for the number of locations stated in the Quote or other written formats. Customer may have authorized employee users (or agents under the direct supervision and control of Customer, for whom Customer is liable under this Agreement or otherwise) per each location (the “Authorized Users”).  Authorized Users are subject to the terms and conditions of this Agreement and Company’s established rules, policies and procedures, including without limitation the API Terms of Use, Privacy Policy and Terms of Use (collectively, the “Policies”) to use the Services. Customer is entitled to increase or decrease the number of locations on an as-requested basis, in writing, but additional fees may apply. Each Authorized User that accesses the Services must create an account, and by creating an account, each Authorized User accepts this Agreement and the Policies. Each account administrator for Customer has the power and authority to accept changes to this Agreement and bind the organization with the account for Company’s Services to this Agreement and the Policies (and any amendments thereto), which is a material inducement of Customer for Company to provide Services under this Agreement.

1.5 Services to Customer. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.

1.6 Customer Authority. Customer represents and warrants that: (a) it is authorized to enter into this Agreement and perform its obligations hereunder (including without limitation any obligations under an applicable Quote); (b) Customer’s obligations hereunder do not conflict with any other agreement or governing document that would make the entrance into this Agreement illegal, void or voidable; and (c) any Authorized User serving as an account administrator has full power and authority to serve as Customer’s designated representative under this Agreement and for issues relating to Customer’s account.

 2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer 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 relevant to the Services or any software, documentation or data related to the Services (“Software”) or Company IP (as defined below); modify, translate, benchmark or create derivative works based on the Services or any Software (or any other Company IP); use Company IP, Services or any Software for purposes of duplicating them or their functionality or otherwise for the benefit of a third party. Customer shall not remove any proprietary notices or labels relating to Company IP. Customer shall not permit Authorized Users or others to access the Services for the purposes of designing software which accomplishes substantially the same functions as the Services.

2.2 Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, Company’s Policies, and all applicable laws and regulations. Customer agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing, the breach of this Agreement or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing or if any use is prohibited under the Policies.

2.4 Customer will 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, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account or Equipment with or without Customer’s knowledge or consent.

 3. 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 (referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service, including but not limited to, workflows, source code, machine code, software architecture, user interface, user experiences, database structures, design, and any other protectable information under applicable intellectual property and trade secrets laws including, without limitation, the U.S. Copyright Act and state and federal trade secret laws. Proprietary Information of Company also includes Company’s name, trademarks (whether registered or unregistered), trade and business names and all associated goodwill, trade dress, designs or logos of Company (the “Marks”) and all patents, rights in inventions, rights in designs, rights to sue for passing off or for unfair competition, copyrights (whether registered or unregistered), moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets), tools and methodologies and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (collectively, the Proprietary Information, the Marks and the other intellectual property mentioned herein, the “Company IP”). Proprietary Information of Customer is comprised of the following non-public data provided by Customer to Company in connection with the provision of the Services (“Customer Data”): user lists or user login information (email, name, password of Authorized Users and/or customers of Customer (although Customer recognizes that Company may be in possession of such data through independent means)), personnel, non-public Customer price information, individually identified sales made through the Services, custom access levels given to Authorized Users and message content exchanged by Authorized Users and Customers’ customers.  Customer Data does not include analytics data concerning users or their behavior using any of the Services, custom workflows, aggregated data obtained by systems used by Company or Company IP or  any non-personally identifiable data (“De-Identified Data”) that does not constitute payment card information (“PCI”) or other personally identifiable information (“PII”). All De-Identified Data and derivatives there of is and shall be owned solely and exclusively by Company.  Customer represents and warrants to Company that it has obtained all Customer Data in accordance with applicable laws and privacy policies and that any use of the Customer Data on the Services is lawfully obtained with the required consent of any customer or Authorized User of Customer, As between Customer and Company, Customer assumes all responsibility for the safe and lawful collection and use of the Customer Data on the Services and agrees that the Services are merely a tool that permits Customer to exploit its Customer Data at its own risk.

3.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information of the Disclosing Party, and (ii) not to use (except in performance of the Services) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to 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.

3.3 Customer will own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Company will own and retain all right, title and interest in and to (a) the Services, Software and De-Identified Data and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing. Customer further agrees that it will not: (i) decompile, reverse engineer, benchmark, review, identify, ascertain, access or modify the Services (or any components thereof) or underlying source code, processes, workflows, user interfaces, user experiences, design, look and feel, software architecture or database structures (or any combination of the foregoing), or otherwise attempt to obtain the processes, workflows, look and feel, design, user interface or user experience, source code, software architecture or database structures for the Services (whether front-end or back-end or related to databases or hardware or otherwise); (ii) sublicense or allow any other person or entity to use the Services other than as expressly permitted by Section 8.2 of this Agreement; (iii) use the Marks of Company without Company’s prior written consent, other than as set forth in Section 8.5 of this Agreement; (iv) use the Services or underlying software architecture, user interface/user experience, database structure, or source code for any purpose other than as set forth the Policies; (v) use the Services or underlying technology in a manner that interferes with the use of Services by Company or its other customers; (vi) commence development of a platform for the design, build, sale or management of applications in competition with the Services (or its components or substantially similar to the Services or its components); or (vii) make any claim of ownership or license to the Marks or the Services (or any components thereof) in any way. Customer acknowledges that it does not presently have the special skills, techniques or business policies developed by Company, nor does the Customer have access to Company’s body of knowledge.  Customer agrees that the Services and its components are not publicly known or available (whether in isolation or as a whole). A violation of this provision shall be deemed to be a material breach of this Agreement and, in such event, Company shall have the right, in addition to retaining all monies paid hereunder and pursuing all other remedies available at law or in equity, to refuse or terminate Customer’s access to the Services (or any component thereof).

3.4 Company will have the right to collect and analyze Customer Data and other De-Identified Data relating to the provision, use, enhancement and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). To the extent necessary to provide Company with the rights granted in Section 3.1 and 3.3 with respect to De-Identified Data, Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit the Customer Data, (the “License”) to (i) use internally to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) to disclose solely in aggregate or other de-identified form in connection with its business.

3.5 Company and the Customer expressly agree and acknowledge that the restrictions contained in this Section 3 shall expressly survive the termination or expiration of this Agreement.

 4. TERM AND TERMINATION

4.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Quote or other written format, and will be automatically renewed for additional periods of the same duration (“Renewal Term”) 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.

4.2 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. In the event of termination for uncured breach, Customer will pay in full for the Services up to the date of termination. In the event of termination for any other reason, Customer will pay in full for the Services up to the current term. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

4.3 Company may change, upgrade, retire features or otherwise modify the Services to from time to time. Generally, Company will communicate these changes to Authorized Users via electronic mail, in-application messages or via other written means. Customer agrees that account administrators may be required to accept new terms and conditions that replace, superseded or modify this Agreement. Customer hereby authorizes such account administrator to accept such updated agreements and terms and conditions on behalf of Customer. This authorization is a material inducement for Company to offer Services to Customer and to enter into this Agreement.  

 5. NO WARRANTY.

COMPANY DOES NOT 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER HEREBY WAIVES ANY CLAIMS FOR REDHIBITION OR WARRANTIES EXPRESSLY DISCLAIMED HEREIN.

 6. INDEMNITY

Customer agrees to defend, indemnify and hold Company, its officers, directors and employees harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of Customer’s breach of this Agreement, Customer’s use of the Services, and/or Customer’s negligence or misconduct. 

 7. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE EXTENT NOT PROHIBITED BY THE APPLICABLE LAW COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES UNDER THIS AGREEMENT OR THE CUSTOMER’S USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,  INCLUDING ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 8. MISCELLANEOUS

8.1 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.

8.2 This Agreement is not assignable, transferable or sublicensable by Customer except with

Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.

8.3 Company shall not be deemed to be in default of this Agreement to the extent that Company’s performance is delayed or prevented by reason of fire, interruption and/or delay of transportation services, labor troubles or strikes, wars, acts of God, riots, terrorism, natural disasters, acts of government, or other occurrences beyond the reasonable control of Company (in each case, a “Force Majeure Event”), provided that Company gives the Customer timely notice within twenty-four (24) hours upon discovery that such Force Majeure Event will delay or prevent Company’s performance of its obligations arising from this Agreement, and the breaching party has used its best efforts to promptly cure the delay or prevention. In the event that either party cancels the related program because of a Force Majeure Event, any fees and expenses that were incurred by Company prior to the cancellation shall become immediately due and owing by Customer to Company, and Company shall have the right to retain such fees and expenses from any Fee or other amounts previously paid by Customer to Company.8.4 If Customer shall default on or breach any of the terms, covenants, obligations, conditions, representations, or warranties in this Agreement or if Customer is the subject of a bankruptcy or similar proceeding, Company shall have the right to exercise any one or more of the following remedies: (a) to sue for and recover all Fees and other payments, then accrued or thereafter accruing; (b) to terminate this Agreement; (c) to retain any Fee or other amounts thereto paid by Customer to Company; (d) to pursue any other remedy available under the law. Notwithstanding any action that Company may take, Customer shall be and will remain liable for the full performance of all obligations on the part of Customer to be performed under this Agreement. All such remedies are cumulative and may be exercised concurrently or separately, and Company shall be entitled to recover expenses and costs including reasonable attorney’s fees.

8.5 Either Party may make use of any trademark, trade name or logo of the other Party to publicize or disclose the existence of this Agreement to any third party, subject to the limitations set forth in Section 3 regarding Company Marks.

8.6 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, and that all waivers and modifications must be in a writing agreed to by both parties, except as otherwise provided in this Agreement.

8.7 Company is an independent contractor. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.

8.8 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

8.9 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

8.10 This Agreement will be governed by the laws of the State of Louisiana without regard to its conflict of laws provisions. Any litigation under this Agreement will be resolved in the trial courts of Orleans Parish, State of Louisiana.

 EXHIBIT A

Support Terms

Company will provide Technical Support to Customer via both telephone and e-mail Monday through Friday during the hours of 8:00 am through 5:00 pm Central time, with the exclusion of Federal Holidays (“Support Hours”).

Customer may initiate a helpdesk ticket during Support Hours by calling 504-226-7756 or any time by emailing support@prokeep.com.

Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

Scheduled maintenance will be held Saturday between 10:00 p.m. and Sunday 2:00 a.m. approximately once a month. Company will use commercially reasonable efforts to notify Customer before any scheduled maintenance occurs.