Terms of Service
All customers agree to the following terms and conditions. PLEASE READ CAREFULLY. BY INDICATING YOUR ACCEPTANCE, YOU ARE AGREEING THAT YOU OR YOUR COMPANY OR OTHER ENTITY YOU REPRESENT WILL BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICES.
This Customer Service Agreement (this “Agreement”) is by and between Prodoscore, Inc., a Delaware corporation (“Prodoscore.com”) and you or the company or other entity you represent acknowledging this Agreement (“Customer”).
- Prodoscore will provide Customer access to Prodocore’s Internet based service (the “Service”) which will permit the processing, retrieval, and transmission of transaction data collected from the Customer (the “Customer Data”) pursuant to the terms of this Agreement. Prodoscores reserves the right at any time and in its sole discretion to change Service features and functionality, as well as the terms and conditions of this Agreement. Such modification of the Service and amended terms and conditions of this Agreement will be effective immediately and incorporated into this Agreement. Your continued use of the Service thereafter will be deemed acceptance of such changes.
- Customer is responsible for its own compliance with this Agreement, including without limitation the compliance of its employees, officers, agents, and any third party Customer invites to participate in the Service.
- If you are using the paid subscription service (as opposed to the free trial version), you will be billed in advance on an annual recurring basis.
- All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
- The paid version of the Service will also automatically include a basic level of technical support.
- Limitations on Use of Service and Service Software.
- As used herein, “Software” refers to any software incorporated into the Service. Customer will not, and will not permit, assist, or allow others to, reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code. Customer will not modify or attempt to modify the Software or sublicense or charge others to use or access the Software or the Service. Customer will not use the Software or the Service in any way not expressly authorized by this Agreement. Customer shall have no right, title or interest in and to the Software which rights of ownership will always be held by Prodoscore.
- Customer acknowledges that the Services is not intended for permanent storage, archiving or back-up purposes. Customer will not have the ability to store any data, including but not limited to “mission critical” data, on the Service. For the sake of clarity, Customers will not have the ability to store data (and therefor should not rely on any such storage); only the Company will have the ability to store data in connection with providing the Service.
- From time to time, Prodoscore may add new features to the Service that are described as “beta” (“Beta Features”). Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional features of the Service. If Customer elects to use a Beta Feature, it does so at its own risk. Notwithstanding the provisions of the first sentence of Section 5(a), Prodoscore does not warrant that the Beta Features will be provided with due care. Customer will back-up all data it adds to the Beta Features and will not rely upon the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Section 3(c), the Beta Features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta Features.
- Customer may not use the Service (i) in violation of this Agreement; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation; (iv) to store or post defamatory, inflammatory, trade libelous, threatening, or harassing data; (v) to store or post obscene, pornographic or indecent content or data; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. Customer may not use the Service in any application that may involve risks of death, personal injury, property damage or environmental damage. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Service. Customer may access the Service only through the interfaces and protocols provided or authorized by Prodoscore. Customer may not compile or use the Prodoscore provided materials or any other information obtained through the Service or the Prodoscore website for the purpose of unsolicited direct marketing, spamming, unsolicited contacting of customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
- Security, Privacy, and Access.
- Each party will promptly notify the other of any unauthorized access to or use of Customer Data or passwords. The parties will use reasonable efforts to take remedial measures to address any such unauthorized access.
- Pursuant to the terms of Section 5 below, Prodoscore will not be liable for any damages (direct, incidental or consequential of any kind) incurred by Customer arising out of or related to use of the Service, including without limitation in connection with any unauthorized access to or disclosure of Customer Data, resulting from the actions of Customer, any third party, or from the failure of electronic or other security measures.
- Customer acknowledges and agrees that notwithstanding the foregoing provisions of this Section 4(a), Prodoscore may transfer Customer Data to any successor in interest of Prodoscore under this Agreement.
- Prodoscore has no obligation to monitor the Service. Prodoscore has the right to monitor the Service and to disclose any information arising out of it, including without limitation Customer Data, as necessary to satisfy any law, regulation, or demand of government or of internal auditors or to protect Prodoscore or its customers. Prodoscore may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, in violation of this Agreement, or otherwise unacceptable. However, Prodoscore has no obligation to remove any such materials.
- Customer will not use the Service to transmit or store any data that may be considered obscene or pornographic, that contains defamatory material, or that violates federal, state, or local law (“Illegal Data”). Company shall not be liable for, and Customer shall defend and indemnify Company with respect to, any transmission, display or storage of Illegal Materials, regardless of whether Company knew or should have known of the illegality of such data.
- Customer will not disclose any account passwords to any third party not authorized to use the Service.
- General Representations and Warranties.
- Each party hereto represents and warrants that (i) it has the full right, power and authority (including corporate right, power and authority, as applicable) to enter into this Agreement, (ii) the acceptance of this Agreement and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and (iii) when accepted this Agreement will constitute the legal, valid and binding obligation of such party, in accordance with its terms.
- In connection with the subject matter of this Agreement, Customer agrees to comply with all applicable federal and state laws and regulations.
- Customer represents, warrants and covenants: (i) that Customer is solely responsible for its Customer Data, including without limitation, the security of such Customer Data; (ii) that Customer has the necessary rights and licenses, consents, permissions, waivers and releases to use its Customer Data.
- Customer represents and warrants that: (i) the information Customer provides in connection with registering for the Service is accurate, complete and in compliance with the requirements hereunder; (ii) if Customer is registering for the Service as an individual, that Customer is at least eighteen (18) years of age and has the legal capacity to enter into this Agreement; and (iii) if registering for the Service as an entity or organization, (1) such entity or organization is duly authorized to do business in the country or countries where it operates, (2) the individual accepting this Agreement and completing the registration for the Service on behalf of the Customer meets the requirements of clause (d)(ii) above and is an authorized representative of such entity or organization , and (3) the employees, officers, representatives and other agents of such entity or organization accessing the Service are duly authorized to access the Service and to legally bind such entity or organization to this Agreement.
- No Warranty; Limitation of Liability.
- Prodoscore MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SERVICE AND PERFORMANCE THEREOF, AND WITH RESPECT TO THE SERVICE AND Prodoscore’s PERFORMANCE UNDER THIS AGREEMENT, SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Prodoscore DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE.
- Furthermore, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION Prodoscore’s NEGLIGENCE, WILL Prodoscore BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE.
- IN NO EVENT WILL Prodoscore’s TOTAL LIABILITY FOR ANY DAMAGES, LOSSES, CAUSES OF ACTION, AND RELATED ATTORNEY FEES, WHETHER ARISING IN CONTRACT, TORT, OR EQUITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO Prodoscore IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
- Prodoscore is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Service. Prodoscore is not liable for the loss of any Customer Data.
- Customer’s sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of Prodoscore is to discontinue using the Service.
- Release of Liability.
Customer and its affiliates, employees, officers, directors, agents, licensors, successors, assignees or any third party Customer invites to participate in or use the Services, Software or Customer Data (collectively, “Potential Users”) hereby release, acquit and forever discharge Prodoscore, its present and former owners, officers, employees, shareholders, directors, partners, attorneys, agents and assignees, and all other persons firms, partnerships, or corporations in control of, under the direction of, or in any way presently or formerly associated with Prodoscore (the “Released Parties”), of, from and against all claims, charges, complaints, liabilities obligations, promises, agreements, contracts, damages, actions, causes of action, suits, accrued benefits or other liabilities of any kind or character, in law or in equity, whether known or unknown, foreseen or unforeseen, vested or contingent, matured or unmatured, suspected or unsuspected, that may now or hereafter at any time be made or brought against any of the Released Parties, arising from or in any way connected with or related to the participation in or use of the Services, Software or Customer Data by the Company and its Potential Users, including, but not limited to, employee disciplinary actions, probations, or allegations of wrongful termination, discrimination, retaliation, breach of contract, anticipatory breach, fraud, conspiracy, promissory estoppel, retaliatory discharge, constructive discharge, discharge in violation of any law, statue, regulation or ordinance providing whistleblower protection, discharge in violation of public policy, intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, harassment, invasion of privacy, any action in tort or contract, or any violation of any federal, state or local law. Furthermore, Customer and its Potential Users agree not to commence any legal proceeding or lawsuit against any of the Released Parties arising out of or based upon the participation in or use of the Services, Software or Customer Data.
- Customer will indemnify and hold harmless Prodoscore and its affiliates, employees, officers, directors, agents, licensors, successors and assigns from all damages and liability, including without limitation reasonable attorneys’ fees, incurred as a result of:
- Customer’s violation of its obligations under this Agreement,
- the negligent or willful acts of Customer, or
- the violation by Customer of Prodoscore’s or any third party’s rights, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, and claims for libel, slander, or unfair trade practices in connection with the use or operation of the Service. Customer’s obligation to indemnify will survive the expiration or termination of this Agreement by either party for any reason.
- Termination and Cessation of Service.
- Either party may terminate this agreement at any time. The following obligations will survive the termination of the Agreement for any reason: (i) indemnification obligations set forth in Section 7 above; (ii) obligations to make payments of amounts that become due under this Agreement before termination; and (iii) any other provision hereof where the context of such provision indicates an intent that it will survive the term or termination of this Agreement.
- Prodoscore may deny or may temporarily suspend Customer access to all or part of the Service without notice if Prodoscore believes, in its sole discretion, that Customer may have violated any of the terms of this Agreement.
- Interruption of Service.
- Prodoscore WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO INTERRUPTION OF, OR DEFECTS IN TRANSMISSION OF, THE SERVICE, including without limitation interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of payments will be made in the case of temporary interruption of or defects in transmission of the Service.
- Prodoscore will not be liable for interruption of or delays in transmission of the Service caused by acts of God, fire, water, riots, acts of government, acts or omissions of Internet backbone providers, or any other causes beyond Prodoscore’s control.
- Compliance with Local Laws
Prodoscore is controlled, operated and administered by Prodoscore primarily from its offices within the USA. Prodoscore makes no representation that materials at Prodoscore are appropriate or available for use at other locations outside of USA and access to them from territories where their contents are illegal is prohibited. Customer may not use Prodoscore or export the Service in violation of USA export laws and regulations. If Customer accesses the Applciation from locations outside of USA, Customer is responsible for compliance with all local laws.
The Service may provide links to third party web sites or integrate with third party applicaitons. Prodoscore has no control over these sites or applications and is not responsible for their availability, does not endorse them, and is not responsible or liable for any content, goods, or services available from them. Prodoscore will not be responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with use of or reliance on any content, goods, or services available through these sites or application.
- Intellectual Property
Prodoscore, the Prodoscore logo, and other Prodoscore logos, products and service names are trademarks of Prodoscore. You must not display or use them in any manner.
- Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THE AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”
(a) Scope of Arbitration Agreement; Rules and Forum. Any legal controversy or legal claim arising out of or relating to the TOS or the Service, excluding legal action taken by Prodoscore to collect fees or recover damages for, or obtain an injunction relating to, Prodoscore’s intellectual property or the Service, will be settled by binding and final arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). Any controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. Payment of all filing, administration, and arbitration fees will be governed by AAA’s rules. If the arbitrator finds that you cannot afford to pay AAA’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from AAA, we will pay them for you. In addition, we will reimburse all such AAA’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location. The arbitration will be conducted in Orange County, California and judgment on the arbitration award may be entered into any court having jurisdiction. Either you or Prodoscore may seek any interim or preliminary relief from a court of competent jurisdiction in Orange County, California necessary to protect the rights or property of you or Prodoscore pending the completion of arbitration.
(b) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Prodoscore. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Prodoscore.
(c) Waiver of Jury Trial. YOU AND PRODOSCORE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Prodoscore are instead electing to have claims and disputes resolved by arbitration, except as specified in subsection (a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(d) Waiver of Class or Consolidated Actions. YOU AND PRODOSCORE AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Prodoscore is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 14.
(e) Survival. This Arbitration Agreement will survive any termination of your relationship with us.
(f) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.
- GENERAL INFORMATION
This Agreement constitutes the entire Agreement between Prodoscore and Customer regarding the subject matter hereof and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any offer, purchase order, or other similar instrument in writing. This Agreement may not be amended, altered, or changed except by a written agreement signed by the duly authorized representatives of both parties. In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect it original intent and the remainder of this Agreement will remain in full force and effect. Customer’s rights in this Agreement are personal and are not assignable. Prodoscore may assign its rights and obligations under this Agreement to third parties. Prodoscore may provide notices to you pursuant to the TOS through email, regular mail, or by displaying conspicuous notices or links to notices to you on the Service. The TOS constitutes the entire agreement between you and Prodoscore and governs your use of the Service, superseding any prior agreements between you and Prodoscore. You also may be subject to additional terms and conditions that may apply when you use other Prodoscore products or services. The TOS and the relationship between you and Prodoscore will be governed by the laws of the State of California, without regard to its conflict of law provisions. You consent to the jurisdiction of the state and federal courts located in Orange County, California. The failure of Prodoscore to exercise or enforce any right or provision of the TOS will not constitute a waiver of the right or provision. If any provision of the TOS is found to be invalid, the other provisions of the TOS will remain in full force and effect. Any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after the claim or cause of action arose or be forever barred.