This site is controlled by ProSoft Technology from its offices within the state of California, United States of America. A User who accesses this site from locations outside of the United States does so on his/her own initiative and is separately responsible for compliance with any applicable local law on internet usage and website access.
This Agreement was last updated on August 4, 2016. It is effective between You and Us as of the date of Your acceptance of this Agreement.
- Rights Granted
- ProSoft Technology hereby grants the User a non-exclusive, non-transferable, royalty free, worldwide limited right to use the Service solely for your internal business operations and subject to the terms of the agreement. All rights in the Service not expressly granted hereunder are reserved to ProSoft.
- You acknowledge that ProSoft Technology has no delivery obligation and will not ship copies of the ProSoft Connect programs to you as part of the Services. You agree that you do not acquire under the agreement any license to use the ProSoft Connect programs in excess of the scope and/or duration of the Services. Nothing in this Agreement shall obligate ProSoft Technology to continue providing access to any Service beyond the date when ProSoft Technology ceases providing such Service to Users generally.
- “Agreement” shall mean these terms and conditions;
- “Application” shall mean the ProSoft-developed application used for the Service hereunder;
- “Service” or “ProSoft Connect” shall mean the online, Web-based applications and ProSoft’s information applications hereunder;
- “Service Start Date” shall mean the date from which the User receives the applicable Service;
- "You" "Your" or “User” means the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.
- "We," “Us," " Our” or “ProSoft” means ProSoft Technology Inc. (and its subsidiaries, affiliates, shareholders, and licensors), a California corporation with a principal place of business at 9201 Camino Media, Suite 200, Bakersfield, CA 93311, United States of America.
- ProSoft Webserver. The Service is made available via a Webserver. User shall acquire, install, operate and maintain at User’s expense all communications lines, equipment, software, services and related technology necessary to receive the Service and shall block unauthorized access to the Service.
- Delivery and Acceptance. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades (“Corrections”) to the Service will be deemed accepted by User on the day such Corrections are delivered.
- Copyright Protection; Use Restrictions; Security
- Proprietary rights. User acknowledges that in providing the Service, ProSoft utilizes: (a) the name, logo and domain name of the product names associated with the Service and other trademarks; (b) certain visual information, documents, software and other works of authorship; and (c) other technology, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information and that the ProSoft is covered by intellectual property rights owned or licensed by ProSoft ("ProSoft IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in the ProSoft IP Rights are granted to User, and all such rights are hereby expressly reserved.
- Restrictions. User agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of User or independent contractors consulting for User in the ordinary course of User’s business may be Authorized Users. User shall not reverse engineer, decompile or disassemble any part of the Service. User further agrees that neither User nor any Authorized User shall store (except as permitted for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of User, without ProSoft’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service (i) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (ii) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by User be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. User agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or ProSoft.
- Acceptable Use. User agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) transmit viruses, Trojan horses or any other malicious code or program; (v) constitute an infringement of intellectual property or other proprietary rights, or (vi) otherwise violate applicable laws, ordinances or regulations. Because of the nature of our business, our services and benefits are not designed to appeal to minors. We do not knowingly attempt to solicit or receive any information from children.
- ProSoft’s Rights. In addition to any other rights afforded to ProSoft under the agreement, ProSoft reserves the right to remove or disable access to any material that violates the foregoing restrictions. ProSoft shall have no liability to User in the event that ProSoft takes such action. User agrees to defend and indemnify ProSoft against any claim arising out of a violation of User’s obligations under this section.
- Limitations. ProSoft may, at its sole discretion, establish and enforce general practices, policies and limitations with regard to your use of the Service, including, but not limited to: (a) the maximum amount of time the your content will be stored by the Service, (b) the maximum number of instances and duration which you may access the Service in a given period of time, (c) the maximum amount of storage allotted to you, (d) the extent of any support provided for the Service and the hours at which it is available.
User (i) is responsible for all activities occurring under the Authorized User accounts; (ii) is responsible for the content of all their Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of the Service, and shall notify ProSoft promptly of any such unauthorized use User becomes aware of; and (iv) shall comply with all applicable local, state, federal or foreign laws and regulations in using the Service;(v) shall be solely responsible for the accuracy, quality, integrity and legality of and for the means by which ProSoft acquires data; (vii) will not interfere with or disrupt the integrity or performance of the Service or (viii) attempt to gain unauthorized access to the Service or to ProSoft’s systems or networks.
USER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND PROSOFT DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
PROSOFT DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT PROSOFT WILL CORRECT ALL SERVICES ERRORS. USER ACKNOWLEDGES THAT PROSOFT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROSOFT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- ProSoft’s Obligation to Indemnify User. ProSoft, at its own expense, will defend any action brought against User based on a claim that the ProSoft Connect Services and/or Software infringe a United States, European Union or Japanese patent, copyright or trademark and, at its option, will settle any such action or will pay any final judgment awarded against User, provided that: (i) PROSOFT shall be notified promptly in writing by User of any notice of any such claim; (ii) PROSOFT shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise and shall bear the costs of the same (save where one or more of the exclusions in Section G (3) applies); and (iii) User shall cooperate fully, at ProSoft’s expense, with ProSoft in the defense, settlement or compromise of such claim. This Section G states ProSoft’s sole and exclusive liability, and User’s sole remedy, for any and all claims relating to infringement of any intellectual property right.
- ProSoft’s Right to Act to Prevent a Claim. If a claim described in Section G (1) hereof occurs or, in ProSoft’s opinion, may occur, User shall permit ProSoft, at ProSoft’s option and expense to: (i) procure for User the right to continue using the applicable Software via the Services; (ii) modify the applicable Software so that it becomes non-infringing without materially impairing its functionality; or (iii) terminate the right to access and use the applicable Software via the Services.
- Exclusions from ProSoft’s Obligation to Indemnify User. ProSoft shall have no liability to User under Section G (1) hereof or otherwise to the extent that any infringement or claim thereof is based upon: (i) use of the Software or Services in combination with equipment or software not supplied hereunder where the Software or Services itself would not be infringing; (ii) use of the Software or Services in an application or environment for which it was not designed or not contemplated under these Terms; (iii) use of other than a current release of the Software(s) made accessible to User via the Services; (iv) modification of the Software by anyone other than ProSoft or its employees or agents; or (v) any claims of infringement of any patent, copyright, trade secret, trademark or other proprietary right in which User has an interest.
- User’s Obligation to Indemnify ProSoft. You agree to indemnify, hold harmless and defend ProSoft, its partners, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys' fees, asserted by any person, arising out of or relating to: (i) your use of the Site, including any data or work transmitted or received by You; and (ii) any unacceptable use of the Site, including, without limitation, any statement, data or content made, transmitted or republished by You which is prohibited as unacceptable at Section D (c).
- Limitation of Liability.
IN NO EVENT SHALL PROSOFT OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Term and Termination
- Term. This Agreement commences on the date you accept it and continues until terminated in accordance with Section (b) “Termination”.
- Termination. You may terminate ProSoft Connect Service at any time by deleting your account. We may terminate Your ProSoft Connect Service (i) at any time without cause upon 30 days’ written notice to You, or (ii) upon 7 days’ written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period, or (iii) if a receiver is appointed over any assets of either party or if either party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect. Upon any termination of Your Service, this Agreement shall also terminate, subject to Section (3) “Survival”.
- Survival. The following obligations of the parties will survive termination or expiration of this Agreement for any reason: Sections B, D, F, G, H, J, K, and L of this Agreement.
In the course of using the Services, you may provide information which may be used by ProSoft in connection with the Services. When reasonably practicable, ProSoft will attempt to respect your privacy. ProSoft will not monitor, edit, or disclose any personal information about you without your prior consent unless ProSoft has a good faith belief that such action is necessary to:
- Dispute Resolution
- Process. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or ProSoft Technology must resolve any claims relating to these terms, the Services, or the Software in accordance with the laws of the State of California, United States of America (“California”), applicable to contracts made entirely within California and wholly performed in California, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Kern County, California. You may have additional rights under the law. We do not seek to limit those rights where it is prohibited by law.
- Rules. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement or to any goods sold or purchased among them. User irrevocably consents to service of all writs, process, and summons in any suit, action or proceeding filed or initiated by the ProSoft to be made upon User by any of the following methods at ProSoft’s sole election: (i) Service upon User at its address by registered mail or certified mail postage prepaid (or the equivalent in User’s jurisdiction), or (ii) Service in any other manner permitted by applicable law.
- Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction without any requirement to post a bond or other security. User acknowledges and agrees to not contest such application.
- Assignment. This Agreement is not transferable, assignable, delegable, or sublicenseable by User in whole or in part, without the prior written permission of ProSoft. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors, trustees, administrators, and assigns.
- Independent Contractor. ProSoft is acting in performance of this Agreement as an independent contractor.
- Third Parties. You understand that ProSoft uses third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
- Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other party. No third party is a beneficiary of this Agreement.
- Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either party at any time to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter.
- Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
- Force Majeure. Any failure or delay by ProSoft in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of ProSoft.
- Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. User agrees that such export control laws govern their use of the services (including technical data) and any services deliverables provided under this agreement, and agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). User agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Authorized Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
- Availability. Pages describing the Services are accessible worldwide but this does not mean all Services or service features are available in your country, or that user-generated content available via the Services is legal in your country. We may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Services is legal where you use them. Services are not available in all languages.
- Third Party Websites. This Website may contain links to third-party Websites. Such linked Websites are not under the control of ProSoft Technology, and ProSoft Technology assumes no responsibility for the contents of any such linked Website, any link contained in a linked Website, any changes or updates to such linked Websites, or any material transmitted or downloaded from any linked Website.
- Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.