SOFTWARE SUBSCRIPTION & SERVICES
TERMS & CONDITIONS
These Software Subscription & Services Terms & Conditions (“Terms & Conditions”), including the exhibits hereto, form part of an agreement (this “Agreement”) by and between ProSymmetry, LLC, an Ohio Limited Liability Company (“PROSYMMETRY”) and each customer (“Customer”) that has executed and/or is subject to one or more ProSymmetry order forms (each an “Order”). This Agreement is comprised of such Order and these Terms & Conditions, which are incorporated therein, and is effective as of the date the former has been executed by both Customer and PROSYMMETRY or otherwise takes effect (“Effective Date”). Each of PROSYMMETRY and Customer is a “Party,” and are together the “Parties,” to this Agreement.
- LICENSE. Pursuant to the terms of this Agreement, the PROSYMMETRY proprietary software referenced in an Order, including related user guides, manuals and updates provided by PROSYMMETRY to Customer (collectively, the “Software”) and the use thereof is licensed to Customer and not sold. Except as otherwise expressly provided, and consistent with each Order, PROSYMMETRY and/or its service providers will provide access to the Software via the Internet to Customer’s Authorized Users, which may be used solely for Customer’s internal business purposes.
- Only those officers, directors, employees, vendors and agents of Customer designated by Customer to use the Software, up to but not exceeding the number of users duly authorized and paid for pursuant to an Order, may access and use the Software (“Authorized Users”), provided that; Customer shall at all times be and remain responsible and liable for the actions of Authorized Users, including their strict compliance with the terms of this Agreement.
- The rights granted hereunder are non-exclusive, non-transferable and terminable as provided herein.
- This Agreement is a subscription that contemplates one or more Orders, each of which incorporates and is subject to these Terms & Conditions. In the event of any conflict between these Terms & Conditions and the terms of an Order, the terms of such Order shall prevail only if they expressly identify the provision hereof to be modified or overridden and recite the Parties’ express intention to do so.
- RESTRICTIONS. Except as expressly authorized herein, Customer may not, directly or indirectly:
- copy, modify, distribute or publicly display the Software, in whole or in part;
- assign, sublicense, rent, lease, lend, transfer or otherwise make available the Software to any other party or in any type of environment not directly related to Customer’s internal business purposes;
- use the Software in excess of the levels (by resources and users) agreed to and paid for by Customer pursuant to an Order;
- cause or permit reverse engineering (except to the extent expressly permitted by applicable law despite this limitation), decompilation, disassembly, modification, translation, or any attempt to extract or reproduce the source code of the Software or create derivative works of the Software; or
- benchmark, evaluate or use the Software for the purpose of competing with PROSYMMETRY.
- FEES & TAXES. Customer will pay to PROSYMMETRY all fees set forth in each Order, on such terms as prescribed therein (“Fees”), provided that; in the absence of a different payment schedule in an Order, such Fees will be due and payable by Customer on an annual basis in advance. Except as otherwise provided, payments are due within thirty (30) days of invoice date and late payments will be subject to interest charged at the lesser of 1.5 % per month and the maximum rate permitted by law. Customer will pay the appropriate government agency (or reimburse PROSYMMETRY) any taxes or charges imposed in connection with the Fees under this Agreement, including, but not limited to, sales, use, VAT, excise, customs duties and other similar taxes (other than taxes based on PROSYMMETRY’s net income or property), to the extent that Customer is not exempt from such taxes or charges. PROSYMMETRY will collect all such taxes and charges, as it is required, unless Customer provides PROSYMMETRY with proof of exemption.
- INTELLECTUAL PROPERTY. PROSYMMETRY or its licensors retain all right, title and interest in and to the Software and all related patents, patent rights, copyrights, trademarks, trade secrets and other proprietary rights (collectively, “Intellectual Property”) therein, which is protected by applicable Intellectual Property laws. Customer may not remove any product identification, copyright, trademark or other Intellectual Property notices from the Software. PROSYMMETRY reserves all rights not expressly granted hereunder.
- MUTUAL CONFIDENTIALITY. Each Party (for purposes of this provision, “Recipient”) agrees that it will not disclose Confidential Information of the other Party (for purposes of this provision, “Discloser”) to any third party, or use Discloser’s Confidential Information for any purpose other than performing under this Agreement.
- ”Confidential Information” means proprietary or confidential information, including, among other things (i) such information relating to products or services provided by a Discloser, financial information, software, flow charts, techniques, designs, specifications, development and marketing plans, strategies, and forecasts; (ii) as to PROSYMMETRY and its licensors, the Software; (iii) as to Customer, all data uploaded to the Software by or on behalf of Customer (“Customer Data”); and (iv) the terms of this Agreement, including without limitation, Software pricing information.
- Exclusions. Confidential Information excludes information that is: (i) rightfully in Recipient’s possession without any obligation of confidentiality; (ii) or becomes a matter of public knowledge through no fault of Recipient; (iii) received by Recipient from a third party without violation of any duty of confidentiality; (iv) independently developed by or for Recipient without use of the Confidential Information; or (v)required to be disclosed by applicable law or court order, provided that; before any disclosure thereof, Recipient will notify Discloser of such requirement and cooperate fully with Discloser (at the latter’s expense) in seeking to protect the confidentiality of such information.
- Customer Data. For the avoidance of doubt, PROSYMMETRY asserts no proprietary rights to Customer Data and Customer has the right to remove Customer Data from the Software at any time or request its deletion therefrom. Customer is solely responsible to secure proper authorization (by consent or otherwise) to process any Customer Data, for the accuracy thereof and for the selection and implementation of controls on access to and use of such Customer Data, including that stored or residing in the Software. All processing of Customer Data hereunder is subject to the Data Processing Addendum attached hereto as Exhibit A.
Subject to Customer’s fulfillment of its obligations under this Agreement, PROSYMMETRY hereby represents and warrants as follows:
- Availability. Except as otherwise provided herein or in an Order, PROSYMMETRY will employ commercially reasonable efforts to maintain the availability of the Software at least 99.7% of the time in any given month, excluding maintenance outages (which PROSYMMETRY will undertake to schedule reasonably in advance), provided that; PROSYMMETRY’s sole liability and Customer’s exclusive remedy for failure to maintain that level of availability, as documented in writing by Customer within ten (10) days following the end of the relevant month and confirmed by PROSYMMETRY, will be an equitable adjustment (e.g., credit) in the Fees otherwise due to PROSYMMETRY for the succeeding month;
- Performance. Except as otherwise provided herein or in an Order, for a period of ninety (90) days following commencement of Customer’s access to the Software in connection with the applicable Order, the Software will perform in substantial conformity with its user guide, provided that; (i) this warranty will not apply to any non-conformity caused by factors other than the Software (including, e.g., Authorized Users’ incompatible browsers, other non-PROSYMMETRY software or, for the avoidance of doubt, changes thereto which disrupt or prevent the import of data to the Software, Customer’s hardware, misuse of the Software, including its API, etc.) or that cannot be replicated by PROSYMMETRY, (ii) and (ii) PROSYMMETRY’s sole liability and Customer’s exclusive remedy for any asserted breach of such warranty will be for PROSYMMETRY to modify the Software and/or user guide to correct such non-conformity;
- Services. PROSYMMETRY shall employ commercially reasonable measures to perform such consulting, development, implementation, support or other professional services as Customer has purchased pursuant to an Order (collectively, “Services”) in a timely and workmanlike manner using qualified personnel, consistent with generally-accepted industry standards and terms of the applicable Order and any related statement of work executed by the Parties (“Statement of Work”), provided that; Customer acknowledges that PROSYMMETRY’s performance of such Services depends directly on Customer’s timely commitment, cooperation and participation and agrees to appoint a project manager to serve as Customer’s point of contact for the Services, with authority to act on behalf of the Customer in all matters regarding the Services, including (a) managing Customer personnel and responsibilities; (b) serving as the interface between PROSYMMETRY and all participating Customer personnel and departments; (c) participating in project status meetings; (d) promptly securing and providing any necessary information, data, and/or decisions reasonably requested by PROSYMMETRY; (e) resolving schedule deviations caused by Customer; (f) resolving (or escalating to resolution, as necessary) project issues; (g) addressing any special invoice or billing requirements associated with the Services; and (h) approving any adjustments to Fees for Services; and
- Malware. PROSYMMETRY has used commercially reasonable efforts consistent with industry standards (i) to scan for and remove any known viruses from the Software, and (ii) to avoid incorporating into the Software any computer code not reflected in its documentation that is designed to delete, interfere with, or disable the normal operation of the Software (excluding PROSYMMETRY license keys).
EXCEPT FOR THE FOREGOING WARRANTIES, THE SOFTWARE IS PROVIDED “AS IS” AND PROSYMMETRY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE MAY NOT BE ERROR FREE NOR ITS USE UNINTERRUPTED.
- SUPPORT. PROSYMMETRY will provide such maintenance and support Services for the Software as Customer has purchased under the relevant Order, consistent with PROSYMMETRY’s then-current Support Policy, as presently set forth in Exhibit B (“Support”). Customer acknowledges that PROSYMMETRY may, from time to time and upon written notice to Customer, modify its Support Policy.
- TERM & TERMINATION. Except as otherwise expressly provided in an Order, each Order will have a one (1) year term and will automatically renew on an annual basis, unless either Party provides at least thirty (30) days’ advance notice of non-renewal. Either Party may terminate this Agreement or an Order, upon a material breach by the other Party, which has not been cured within thirty (30) days after written notice of such breach. Customer may also terminate this Agreement for convenience upon thirty (30) days’ advance notice to PROSYMMETRY. Termination of this Agreement will not change Customer’s payment obligations under any Order, nor entitle Customer to any refund of Fees. Upon termination of this Agreement for any reason, Customer and all Authorized Users must immediately cease use of the Software (whether still accessible to Customer or Authorized Users or not) and PROSYMMETRY will promptly delete, or at Customer’s request and expense, return to Customer all Customer Data in its custody.
- PROSYMMETRY will indemnify, defend and hold harmless Customer from and against any judgment, damage, injury, loss or expense (including reasonable attorney fees) resulting from any claim brought by a third party alleging that the Software infringes or misappropriates such third party’s Intellectual Property rights existing as of the Effective Date, provided that Customer immediately notifies PROSYMMETRY of the assertion of such claim, acknowledges ProSymmetry’s control over the defense and/or settlement thereof and cooperates fully with ProSymmetry in connection with same. This section represents Customer’s sole and exclusive remedy and PROSYMMETRY’s sole liability for any third party Intellectual Property claims.
- Customer will indemnify, defend and hold harmless PROSYMMETRY from and against any judgment, damage, injury, loss or expense (including reasonable attorney fees) resulting from any claim brought by any third party based upon PROSYMMETRY’s possession, storage or processing of any Customer Data or other data provided to PROSYMMETRY by Customer, regardless of the grounds or legal theory upon which such claim is based, provided that PROSYMMETRY immediately notifies Customer of the assertion of such claim and communicates regularly with Customer in connection with same. This section represents PROSYMMETRY’s sole and exclusive remedy and Customer’s sole liability for any third party claims based on Customer Data or other data provided to PROSYMMETRY in connection with this Agreement.
- LIMITATIONS OF LIABILITY. PROSYMMETRY SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OR DAMAGE TO OR LOSS OR DISCLOSURE OF DATA), REGARDLESS OF WHETHER ARISING UNDER CONTRACT OR TORT LAW OR OTHER LEGAL THEORY AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCE WILL PROSYMMETRY’S TOTAL, CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER RESULTING FROM ONE OR MORE CLAIMS AND ARISING UNDER ANY LEGAL THEORY, EXCEED THE TOTAL FEES PAID TO PROSYMMETRY DURING THE SIX (6) MONTHS PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
- MISCELLANEOUS TERMS.
- Survival, Waivers. Sections 2, 4, 5, 8, 9,10 and 11 of these Terms & Conditions shall survive termination hereof. Any waiver by a Party of any breach of this Agreement will not be construed as a waiver of any continuing or succeeding breach.
- Assignment. Customer may not assign or transfer this Agreement, including any Order, or any right or obligation hereunder to any third party without PROSYMMETRY’s prior written consent, except that this Agreement and all Orders may be assigned to the buyer of all, or substantially all, the assets or business of Customer.
- Notices. Any notices under this Agreement must be in writing and must be delivered by registered mail (or by courier or overnight service with tracking number) to the receiving Party at the address shown in the latest Order or to such other address as either Party designates by notice as provided herein.
- Governing Law and Dispute Resolution. This Agreement is governed by the laws of the State of Ohio, without regard to its choice of law principles. Any dispute between the Parties related to this Agreement must first be addressed by the relevant executives of each Party, who shall meet upon the written request of either Party in a good faith attempt to resolve all outstanding issues before either initiates any adversarial proceeding. If a resolution has not been reached within ten (10) days after such meeting, either Party may require the dispute to be determined by binding arbitration before a single arbitrator in Cleveland, Ohio, under the then-current Commercial Arbitration Rules of the American Arbitration Association. Notwithstanding the foregoing, nothing in this Agreement will prevent PROSYMMETRY from obtaining injunctive relief in any court of competent jurisdiction, without the necessity of posting bond or demonstrating immediate, irreparable harm, in order to protect its Intellectual Property rights in the Software.
- Enforceability. If any term of this Agreement is held invalid or unenforceable, the remaining terms shall remain in effect.
- PO Terms. For the avoidance of doubt, the Parties agree that any additional or conflicting terms of Customer’s purchase order or other form purchasing or procurement document will not apply to this Agreement and the business transactions conducted hereunder.
- Entire Agreement and Changes. These Terms & Conditions, including the exhibits hereto, and the Order(s) (including any related Statement of Work), embody the complete and exclusive Agreement of the Parties regarding the subject matter hereof and supersede any prior or contemporaneous communications, negotiations or agreements between the Parties relating to same. This Agreement may not be modified except in writing executed by both Parties. Similarly, any Statement of Work for Services hereunder may only be modified pursuant to a change request (that describes, at a minimum, the changes requested and the resulting effects on the related Services and Fees for same) submitted in writing by one Party and expressly approved by the other, as reflected in a project change authorization executed by both Parties.
- Force Majeure. Neither Party shall be liable for any failure or delay in performance due to events or circumstances beyond its control.
Data Processing Addendum
to Software Subscription & Services Terms & Conditions
This Data Processing Addendum (the “Addendum”) supplements the ProSymmetry Software Subscription & Services Terms & Conditions (the “Terms & Conditions”) and the agreement of which they are part (the “Agreement”) by and between ProSymmetry, LLC, an Ohio Limited Liability Company (“ProSymmetry”), and the customer identified in an applicable Order (the “Customer”). This Addendum is dated and effective as of the Effective Date of the Agreement.
The Agreement governs access to and use of the Software and related services, pursuant to which data uploaded by the Customer may be stored or processed by ProSymmetry. This Addendum sets out the terms of the Agreement governing data processing.
- Definitions1.1. Capitalized words and phrases not defined in this Addendum have the same meanings as in the Terms & Conditions.
1.2. “Compliant Jurisdiction” means (i) the United Kingdom, or (ii) a country within the European Economic Area, or (iii) a country with the benefit of a favorable adequacy decision under Article 45 of Regulation (EU) 2016/679.
1.3. “GDPR” means Regulation (EU) 2016/679 (commonly known as the General Data Protection Regulation), as amended from time to time.
1.4. References to ‘Controller’, ‘Data Subject, ‘Personal Data’, ‘Data Breach’, Processor’, ‘Processing’ (including ‘Process,’ ‘Processed,’ etc.), ‘Sensitive Data’ and ‘Supervisory Authority’ have the meanings defined in GDPR. References to ‘Sub-Processor’ mean another Processor appointed by a Processor.
1.5. “Service Data” means aggregated information that is not Personal Data and does not identify the Customer, which arises or results from ProSymmetry’s delivery of the Services pursuant to the Agreement or this Addendum.
- Status of this Addendum2.1. This Addendum supplements the Terms & Conditions and forms part of the Agreement.
2.2. This Addendum applies only to data of or from Customer that includes or might potentially include Personal Data but which expressly excludes Sensitive Data (”Customer Data”) in circumstances where the Processing of that Personal Data by ProSymmetry is subject to GDPR.
2.3. If this Addendum is inconsistent with any other provisions of the Agreement, the Parties intend that the provisions of this Addendum should prevail.
- EU Data Protection Legislation3.1. For all Personal Data provided to ProSymmetry by or on behalf of Customer for Processing under the Agreement, the Parties intend and agree that Customer is the Controller and ProSymmetry is the Processor of the Personal Data
3.2. Except for (i) login details of authorized users of the Software; and (ii) Customer Data that includes Personal Data and is supplied to ProSymmetry by Customer other than by uploading it to or through the Software (if any), ProSymmetry and Customer agree as follows:
3.2.1. ProSymmetry will have no responsibility to Process, store or retain Customer Data except pursuant to the Agreement or other written instructions received from Customer (as Controller) and acknowledged and agreed to by ProSymmetry;
3.2.2. ProSymmetry may implement and maintain such technical and organizational measures to protect Customer Data against unauthorized Processing, accidental loss, destruction, damage, theft, alteration or disclosure (including confidentiality obligations on the part of its employees consistent with the Agreement), as are appropriate in light of the nature of the Customer Data and the harm that might result from the foregoing;
3.2.3. Customer Data may be Processed by ProSymmetry using encryption methods that render such Customer Data unintelligible to ProSymmetry personnel and any software other than the Software in normal operation;
3.2.4. ProSymmetry, as Processor, may engage one or more Sub-Processors to Process Customer Data pursuant hereto;
3.2.5. Customer determines and controls the Customer Data to be Processed hereunder and is solely responsible for transferring or providing access to any Personal Data therein, excluding Sensitive Data therefrom, and for complying with GDPR, as Controller thereof;
3.2.6. Even if the Customer uses the features of the Software to identify Customer Data that contains Personal Data, such attributes of Customer Data may be inaccessible or unintelligible to ProSymmetry personnel and ProSymmetry may therefore be unable to:
18.104.22.168. ascertain whether Customer Data includes Personal Data (as a result of which ProSymmetry may treat all Customer Data as if it might include Personal Data);
22.214.171.124. ascertain whether Customer Data includes any special categories of Personal Data (as a result of which ProSymmetry will not treat any Customer Data any differently);
126.96.36.199. ascertain whether the Software is used by authorized users to Process Customer Data outside the European Economic Area;
188.8.131.52. determine when Personal Data ought to be deleted or when Processing of Personal Data ought to cease;
184.108.40.206. take any steps to comply with the rights of Data Subjects for access to Personal Data, rectification or erasure of Personal Data, data portability, rights to be forgotten, or to act upon any notices from Data Subjects; or
220.127.116.11. keep a record of Processing with any greater information or detail than that which is expressly required to be kept by ProSymmetry pursuant to the Agreement and this Addendum;
3.2.7. ProSymmetry will have the right to collect, extract, compile, synthesize and analyze Service Data and, except as otherwise provided in the Agreement or herein, will own all rights in and to the Service Data.
- Protection of Personal DataIf Customer uses the Software to Process any Customer Data that includes Personal Data in circumstances where the Processing of that Personal Data is subject to GDPR, for the purpose of ensuring an adequate level of protection as required by Article 45 thereof, ProSymmetry is certified under the Privacy Shield Framework (see www.privacyshield.gov) and shall use commercially reasonable efforts to remain certified for so long as the Framework continues and is generally recognized as satisfying the requirements of Article 45 of GDPR.
This Support Policy is governed by the and incorporated into the PROSYMMETRY Software Subscription & Services Terms & Conditions (the “Terms & Conditions”) and the agreement of which they are part (the “Agreement”). Capitalized terms not defined herein shall have the same meanings as in the Terms & Conditions. Consistent with the terms of each applicable Order, ProSymmetry shall employ commercially reasonable efforts to meet or exceed the standards set forth in this Support Policy.
- Access. Except for Scheduled Maintenance or any unscheduled downtime due to failures beyond ProSymmetry’s reasonable control (such as errors or malfunctions due to Authorized Users’ browsers, computer systems, local networks or internet connectivity), ProSymmetry and/or its service providers (e.g., Amazon Web Services, Microsoft Azure) shall strive to make the Software available twenty-four (24) hours per day, seven (7) days a week with a minimum uptime level of ninety-nine and seven-tenths of a percent (99.7%) measured on an monthly basis. Such service availability does not, however, include periods of planned downtime.
- Scheduled Maintenance, Upgrades. ProSymmetry shall strive to conduct scheduled maintenance of the Software (“Scheduled Maintenance”) outside normal business hours (8:00AM EST – 8:00PM EST, Monday-Friday, excluding U.S. holidays). Customer shall provide to ProSymmetry in writing (and update as necessary) the names and all relevant contact information of its primary and secondary system administrators responsible for Customer’s use of the Software (each a “SysAd”). ProSymmetry shall attempt to give Customer’s SysAd at least twenty-four (24) hours prior notice of the exact date and time of such Scheduled Maintenance via e-mail or other timely means of communications.
- Monitoring and Notification. ProSymmetry shall monitor (i) network connectivity, (ii) application uptime, (iii) database uptime and (iv) security. In the event of (i) loss of network connectivity, (ii) application outage, (iii) database outage or (iv) security event, ProSymmetry shall promptly notify Customer’s SysAd and provide an estimate to of time to resolve.
- DATA RETENTION AND RECOVERYProSymmetry shall back up Customer’s data on a daily basis and employ measures intended to ensure that the backup data is accessible and maintained in a manner to enable restoration of the backup version of End Users’ databases in the event of a system malfunction or outage. ProSymmetry shall retain such daily backups of Customer’s data for no more than thirty (30) days.
- SUPPORT REQUESTS ProSymmetry service representatives shall be available to respond to Customer’s technical support requests sent by SysAd by email to Support@ProSymmetry.com (“Support Requests”) during the hours of 8:00am – 8:00pm Eastern Standard Time, Monday through Friday, excluding U.S. holidays (the “Support Hours”).
- ISSUE TRACKINGSupport Requests submitted to ProSymmetry shall be classified as (i) Level 1 Critical, (ii) Level 2 High, (iii) Level 3 Medium or (iv) Level 4 Low. Customers shall classify such Support Requests in a reasonable manner, based on the severity of the underlying issue. Each Support Request shall be accompanied by (i) a thorough description of the underlying issue (including all information necessary to replicate it) and (ii) the primary point of contact and, if the latter is not a SysAd, (iii) the phone number and (iv) the e-mail address of the primary point of contact.
Upon verifying the severity Level of the Support Request, ProSymmetry will use commercially reasonable efforts to respond to same, as follows:
• Level 1 Critical – ProSymmetry will respond in 2 business hours.
• Level 2 High – ProSymmetry will respond in 4 business hours.
• Level 3 Medium – ProSymmetry will respond in 8 business hours.
• Level 4 Low – ProSymmetry will respond in 16 business hours.
Customer acknowledges and agrees that ProSymmetry cannot guarantee uninterrupted access to or use of the Software or resolution of every issue affecting same and that ProSymmetry shall not be deemed to have breached any provision of the Agreement as a result of failing to resolve any issue within the foregoing response times or otherwise. Customer further acknowledges and agrees that ProSymmetry shall have no liability for any failure or delay in performance resulting directly or indirectly from events or circumstances beyond its control, including acts of God, natural disasters, other catastrophes, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes or disturbances, fire, transportation interruptions, shortages of facilities, fuel, energy, labor or materials, telecommunications disruptions, including interruptions of the Internet, or laws, regulations, acts or orders of any government agency or official thereof.