THIS AGREEMENT GOVERNS YOUR ORGANIZATION’S ACQUISITION AND USE OF SOFTWARE LOCATED AT WWW.GETPROVEN.COM (HEREAFTER THE “SERVICE”).
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. BOTH YOU, AND/OR THE LEGAL ENTITY YOU MAY REPRENTS ARE REFERRED TO AS “CUSTOMER”, “YOU”, OR “YOUR(S)”.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service, except with our prior written consent, for purposes of monitoring their availability, performance or functionality.
Your use of the Service constitutes your agreement to these terms. It is effective between you (or the legal entity you represent) and Proven, Inc. as of the date you sign an Order or you first use the Service, whichever is earlier.
10.1 Confidentiality. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential.
10.2 Exclusions. “Confidential Information” does not include information that: (a) is independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (b) is lawfully received free of restriction from another source having the right to furnish such information; (c) is or becomes lawfully in the public domain other than through a breach of this Agreement; (d) was known by the Recipient prior to disclosure; (e) Discloser agrees in writing is free of such restrictions; or (f) is generally disclosed by the Discloser to third parties without a duty of confidentiality.
10.3 Duties Regarding Confidential Information. Recipient may disclose Discloser’s Confidential Information only to Recipient’s Affiliates, employees, officers, directors, advisors or contractors who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. At all times during and after the term of this Agreement, Recipient shall (a) keep Discloser’s Confidential Information confidential and not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent or as expressly permitted in this Agreement, and (b) not use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice (if legally permissible) to enable Discloser to seek appropriate protection of the Confidential Information and discloses only that portion of the Confidential Information that the Recipient is legally compelled or is otherwise legally required to disclose. Any prior non-disclosure agreement executed among the parties is terminated in favor of these confidentiality terms.
10.4 Unauthorized Disclosures. The parties agree that Recipient’s threatened or actual unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond. Any such injunction shall be additional to other remedies available to Discloser at law or in equity.
11.1 General Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement. Proven represents and warrants that: (a) if it Professional Services it will use reasonable skill and care, (b) the Service will perform materially in accordance with the Documentation under normal use and circumstances, and (c) it has taken commercially reasonable measures to ensure the Service is free from, and will not transmit, any malicious or hidden mechanisms or code designed to damage or corrupt Customer’s Data or network systems. Customer represents and warrants that: (a) it has the right to provide Proven with access to all Customer Data. Except for the Customer’s right to terminate in accordance with Section 14.3, Proven’s sole responsibility and Customer’s exclusive remedy in the event of any material failure to the warranties expressly stated in Section 9, shall be that Proven shall make commercially reasonable efforts to remedy any resulting deficiencies. Customer may invite certain Vendors to offer products and services Users via the Services.
11.2 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, PROFESSIONAL SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT OTHER WARRANTY OF ANY KIND.
12.1 Indemnification by Proven. If a third party initiates or threatens a legal action alleging that Customer’s use of the Service directly infringes the third party’s patent, copyright, or trademark or misappropriates the third party’s trade secret rights (such action, a “Claim”), then Proven will (a) promptly assume the defense of the Claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against Customer (without right of appeal) or in a settlement approved by Proven that are attributable to Customer’s use of the Service; provided that Customer: (i) is current in the payment of all applicable fees, or becomes current, prior to requesting indemnification, (ii) notifies Proven in writing of the Claim promptly after receipt of the Claim (but in no case later than fifteen (15) days), (iii) allows Proven to sole control the defense of the Claim with counsel of Proven’s choice, and to settle such Claim at Proven’s sole discretion (wherein Customer will have the right to approve the portion of any settlement which requires payment by Customer or requires Customer to admit liability), and (iv) reasonably cooperates with Proven in defending the Claim. This remedy represents Customer’s sole and exclusive remedy under this Section 10.
12.2 Other Resolution. If the Service becomes the subject of any actual or anticipated third party infringement claim, Proven may, at its sole option and expense, either: (i) procure for Customer the right to continue using the affected Service consistent with this Agreement, (ii) replace or modify the affected Service with a functionally equivalent service that does not infringe, or, (iii) if neither (i) nor (ii) is available on a commercially-feasible basis, terminate the Agreement and applicable Order and refund any prepaid fees for all unused portions of the then-current Subscription Term as of the date of termination.
12.3 Exclusions. Proven will have no liability for any Claim based upon: (a) any third-party components or services (including Connected Applications), (b) any unauthorized use of the Service in violation of this Agreement or applicable Order, (c) Proven’s compliance with designs, specifications or instructions provided by Customer where those designs, specifications or instructions cause the infringement, or (d) use by Customer after notice by Proven to discontinue using all or part of the Service. This section constitutes the entire liability of Proven, and Customer’s sole and exclusive remedy, with respect to any third-party claims of infringement or misappropriation of intellectual property rights.
12.4 Indemnification By Customer. If a third party initiates or threatens legal action against Proven for processing Customer Data uploaded into the Service by Customer or Users, or for a claim relating to Customer’s, or a User’s breach of its obligations under Section 5, where such claim arises solely from Proven operating the Service, then Customer will: (a) promptly assume the defense of the claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against Proven (without right of appeal) or in a settlement approved by Customer that are attributable to Proven processing of such Customer Data to provide the Service; provided that Proven (i) notifies Customer in writing of the claim promptly after receiving it, (ii) allows Customer to control the defense of the claim with counsel of its choice, and to settle such claim at Customer’s sole discretion (unless the settlement requires payment by Proven or requires Proven to admit liability, in which case Proven will have the right to approve such payment or admission, and (iii) reasonably cooperates with Customer in defending the claim at Customer’s expense. Proven shall have no responsibility or liability regarding any claim brought by Customer or any third-party arising from a Vendor’s provision of products or services. Customer shall indemnify and hold Consensus harmless from any claim arising a Vendor’s actions pursuant to the procedure described in this Section 12.4.
13.1 DISCLAIMER OF INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES OR ITS LICENSORS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT (INCLUDING ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOLUTION), WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 LIMITATION OF LIABILITY. NEITHER PARTY’S (OR ITS AFFILIATES’) AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE WILL EXCEED THE AMOUNTS PAID OR OWED TO PROVEN BY CUSTOMER IN THE AGGREGATE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE CAUSED BY NEGLIGENCE, OR FOR FRAUD. NOTHING IN THIS SECTION WILL LIMIT THE FEES OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICE OR PROFESSIONAL SERVICES, OR FOR VIOLATING CUSTOMER’S OBLIGATIONS IN SECTION 2. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT PROVEN WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
14.1 Subscription Term. The Subscription Term begins on the Subscription Start Date and remains in effect for the Subscription Term as specified on the applicable Order. At the end of the Subscription Term, the Subscription will automatically renew for additional Subscription Terms equal to the expiring Subscription Term, unless either party notifies the other of its intent not to renew such Subscription at least ninety (90) days before the expiration of the then-current Subscription Term. Non-renewal notice must be provided by email to support@getproven.com.
14.2 Effective Date and Term. This Agreement commences on the Effective Date and shall remain in effect until terminated by either Party in accordance with the terms of the Agreement (the “Term”).
14.3 Termination. If either party materially breaches the terms of this Agreement and the breach is not cured (or curable) within thirty (30) days after written notice of the breach, then the other party may terminate this Agreement and/or the applicable Order(s) upon written notice to the breaching party. Either party also may terminate this Agreement upon written notice if the other party: (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, (iv) has wound up or liquidated, voluntarily or otherwise, or (v) by ten (10) days’ prior written notice if no Order is in effect between the Parties.
14.4 Effect of Termination. If this Agreement is terminated by Customer for Proven’s uncured breach in accordance with Section 14.3 (Termination), Proven will refund Customer any prepaid but unused fees covering the remainder of any terminated Orders as of the effective date of termination. If this Agreement is terminated by Proven for Customer’s uncured breach in accordance with Section 14.3 (Termination), Customer will pay within thirty (30) day any fees which are payable to Proven prior to, or after the effective date of termination. Upon termination of this Agreement: (a) Proven’s obligation to provide the Service will terminate, (b) all of Customer’s, if Affiliate’s, and its Users’ rights to use the Service will terminate, and (c) each party will promptly destroy any data or Confidential Information from the other party in its possession.
14.5 Suspension In Lieu of Termination. If any amount owing by Customer is thirty (30) or more days overdue, Proven may, without limiting its other rights and remedies, and after providing Customer at least 10 days’ prior notice by email, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Proven’s services to Customer until such amounts are paid in full.
16.1 Assignment. Either party may assign this Agreement without the consent of the other party to an Affiliate, or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets (a “Sale”). Assignment will not relieve the assigning party of its obligations under the assigned Agreement and such assignment will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. If Customer enters into a Sale with a direct competitor of Proven or assigns the Agreement to a direct competitor of Proven, Proven may, in its sole discretion terminate the Agreement.
16.2 Compliance with Applicable Laws. Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.
16.3 Future Features and Functions. Customer agrees that Proven may, from time to time, at its sole discretion, modify and update the Service. Customer understands and agrees that any features or functions related to Proven products referenced on any Proven website, or in any presentations, verbal or electronic communications, press releases or public statements, which are not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for our products and services remains at Proven’s sole discretion. Accordingly, Customer agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time an Order is executed, and not in expectation of any future feature or function.
16.4 Notices. Notices may be sent by first-class, registered mail (return receipt requested) or private courier to the address of the receiving party identified on the first page of this Agreement. Notice will be deemed given five (5) days after mailing U.S. first class, registered mail, or upon confirmed delivery by private courier, whichever is sooner. Customer will address notices to Proven’s Legal Department, with a copy to legal@getproven.com. Either party may from time to time change its address for notices under this section upon written notice to the other party.
16.5 Non-waiver. Any failure of either party to enforce performance by the other party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such party's right to assert or rely upon such provision, right or remedy in that or any other instance. Neither party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.
16.6 Dispute Resolution. This Agreement will be governed by the laws of the State of California, U.S.A., without giving effect to any conflicts of laws provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of San Francisco County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following: a) the expiration or termination of all Subscriptions, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
16.7 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
16.8 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a customer or supplier, as applicable.
16.9 Force Majeure. Force majeure events shall excuse the affected party (the "Non-Performing Party") from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include acts which are beyond the reasonable control of a party, including without limitation, Acts of God, natural disasters, pandemic, epidemic, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government (each, a “Force Majeure Event”). As soon as feasible, the Non-Performing Party shall notify the other party of: (a) its best reasonable assessment of the nature and duration of the Force Majeure Event, and (b) the steps it is taking to mitigate its effects. If the Force Majeure Event prevents performance for more than sixty (60) days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice. Proven’s suspension of the Services in order to comply with laws is a Force Majeure Event.
16.10 Entire Agreement; Execution. This Agreement, together with the Appendices and applicable Order(s) constitute the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Revisions to this Agreement must be made by a separate amendment, signed by each party, and must be expressly drafted for that purpose and identify the specific sections that are being revised. However, if Customer agreed to these terms by reference in another binding instrument (e.g., on an Order which refers to these terms by URL), Proven may change these terms by posting an updated version at the applicable URL and notifying Customer of the change. By continuing to access or use the Service after such notice Customer agrees to be bound by the updated terms. Customer click-through terms, preprinted terms in Customer purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Proven and/or purport to take precedence over this Agreement. The order of precedence among all documents executed among the parties shall be: (1) the applicable Order, (2) this Agreement, (3) fully executed SOWs, (4) the Documentation. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties may use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures shall be legally binding with the same effect as manual signatures.
APPENDIX 1
PROVEN SERVICE LEVEL TERMS
Appendix 2
(Definitions)
“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party through the possession of more than fifty percent (50%) of the voting stock of the controlled entity.
“Authorized User” or “User” means: (a) in the case of an individual accepting this Agreement on such individual’s own behalf, such individual; or (b) an employee or authorized third-party of Customer, who has been authorized by Customer to use the Service in accordance with the terms and conditions of this Agreement and has been allocated user credentials.
“Customer Data” means any electronic data or materials provided or submitted by or for Customer to or through the.
“Documentation” means Proven’s published user manual that describes the functionality of the Service, as updated by Proven from time to time.
“Order” means the purchasing document (however so named), signed by a duly authorized representative of each party, that details the Subscription, pricing, payment terms, applicable licensing metrics, other applicable commercial terms and condition, and includes its attachments, schedules, exhibits, addenda, and any terms and conditions and other products and services purchased by Customer from Proven pursuant to this Agreement.
“Party” means either Customer or Proven and together the “Parties”.
“Professional Services” means Training Services, Implementation Services, or other services Customer agrees to purchase as described in a fully executed statement of work.
“Service” means Proven software-as-service platform located at www.getproven.com.
"Subscription" means access to the Service during the Subscription Term. Each Subscription is specific to a unique Authorized User and under no circumstance may an Authorized User Subscription be transferred to, shared among or used by different Authorized Users.
“Subscription Term(s)” means the subscription period(s) during which Customer is authorized to use the Service, as specified in an applicable Order.
“Vendor” means a person or legal entity Customer invites to offer or market the Vendor’s products and/or services via the Services.