CAUTION: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE INSTALLING, COPYING, ACCESSING OR USING THE SOFTWARE, CLOUD SERVICES OR DOCUMENTATION. IF YOU (“CUSTOMER” OR “YOU”) OR YOUR AGENT INSTALL, COPY, OR USE THE SOFTWARE, ACCESS OR USE CLOUD SERVICES, SUPPORT OR PROFESSIONAL SERVICES YOU ACCEPT ALL THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE NOT ACCEPTABLE TO YOU, YOU MAY NOT INSTALL, COPY OR USE THE SOFTWARE; OR ACCESS THE CLOUD SERVICES AND IN SUCH EVENT PLEASE CONTACT PROSPEROWARE IMMEDIATELY AT THE NUMBER LISTED BELOW. PROVIDED THAT YOU HAVE ACCEPTED AND AGREED TO THE TERMS OF THIS AGREEMENT, PROSPEROWARE, LLC (“PROSPEROWARE”) GRANTS YOU A LICENSE TO USE THE SOFTWARE, SERVICE DELIVERABLES, AND ACCESS THE CLOUD SERVICES, AND SUPPORT AS INDICATED BELOW:
Prosperoware and Partner are sometimes referred to herein individually as a “Party” and together as the “Parties.” “Cloud Services” means the Prosperoware cloud service offerings as further described in the Documentation and on the Order Form, including user manuals, release notes and related materials made available by Prosperoware in printed, electronic, or online form (“Documentation”). “Order Form” means ordering document(s) issued by Prosperoware and signed by Partner specifying the Product and Support licensed, duration of the license and/or Professional Services to be provided by Prosperoware. “Products” means the Software or Cloud Services made available for non-production use as specified in the Order Form. “Software” means (a) all of the contents of the files, download packages, disk(s), CD-ROM(s) or other media (including electronic media) provided by Prosperoware, its distributors, resellers, or partners, (collectively “Authorized Partner(s)”), including user manuals, release notes and related materials made available by Prosperoware in printed, electronic, or online form (“Documentation”); and (b), modified or subsequent versions and updates (collectively “Updates”), and any enhancements of the Software, licensed to you by Prosperoware. “Subscription Term” means the period of use for the Products specified in the Order Form. “User” means an individual authorized by Partner to use the Product for Partner benefit, and for whom a user identification and password to access the Product has been established. A User may include, an employee, consultant, contractor, and/or agent of Partner.
1.1. Product Use Right. Subject to the terms of this Agreement, Prosperoware hereby grants You a nonexclusive, nontransferable, non-sublicensable, right to use the Products listed in an Order Form, solely for training, evaluation, to conduct demonstrations to prospective customers (if approved by Prosperoware in writing), and other non-production purposes. Products are provided for the above purposes only and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. The Product is confidential and proprietary to Prosperoware, and You must install the Software on equipment owned by You.
1.2.1. General Restrictions. Licensee may not: (i) copy or use the Products, except as permitted by this Agreement, the Documentation and in accordance with laws, regulations and industry standards applicable to Licensee’s business; (ii) remove any
proprietary notices or labels on the Products; (iii) modify, adapt, translate, reverse engineer, decompile or disassemble Products or otherwise attempt to discover the source code of the Products, the underlying systems used to operate or deliver the same, or algorithms contained therein; (iv) create any derivative works from the Products; (v) permit third parties to benefit from the use or functionality of Products via a timesharing, service bureau or other similar arrangement; (vi) sell, rent, lease, sub-license, or lend Products or any portions thereof; (vii) use the Products to send spam or otherwise duplicative or unsolicited messages in violation of applicable anti-spamming, marketing or other laws; (viii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (ix) knowingly or intentionally interfere with or disrupt the integrity or performance of the Products or the data contained therein after notice from Prosperoware and supply of relevant instructions to correct the issue; (x) attempt to gain unauthorized access to the Products or related systems or networks, including Prosperoware’s hosting environment; (xi) transmit or process data in violation of data privacy and security obligations applicable to the type of data and/or Licensee’s business, industry, or geographic location(s) (or that of the applicable data subjects); (xii) use the Products in a manner that exceeds the scope of use noted in this Agreement or after Prosperoware provides Licensee with written notice of termination, suspension or discontinuation of the license rights herein, including, but not limited to, incident to Prosperoware’s discontinuation of the program pursuant to which the Products is made available at no charge, or Prosperoware’s election to charge for all or portion of the license rights granted herein; (xiii) use or permit use of the Products for any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction or in violation of applicable export and import laws; (xiii) use or upload any cardholder data or information, or any sensitive personal information to the Prosperoware Cloud Services; (xiv) use or upload any client or end user data to the Prosperoware Cloud Services (i.e., the data uploaded to Prosperoware Cloud Services must be Partner’s); (xv) use Prosperoware Cloud Services in a manner to process data or transfer data outside the U.S. Licensee acknowledges and agrees that portions of the Products are not available for download in object or other code form, but are hosted by Prosperoware. Portions made available for download by Prosperoware are licensed to Licensee in object code form only.
1.2.2. CAM Sandboxes. Licensee agrees to the terms and guidelines set forth in the attached “Limits and Restrictions for Prosperoware CAM Sandbox Instances,” attached as “Appendix A.”
Prosperoware may, at its discretion, provide instructional courses about the Prosperoware Products (“Training Services”). If using Products to participate in Training Services, Prosperoware hereby grants Partner a non-exclusive, non-transferable, royalty-free right and license to use materials provided by Prosperoware during Prosperoware Training Services (“Training Materials”) for the training participant’s internal business use only for the benefit of Partner for so long as this Agreement is in effect. Except with Prosperoware’s prior written permission, Partner may not (i) record or film any Prosperoware Training Services, (ii) modify or prepare derivative works of the Training Materials, (iii) prepare or deliver training concerning the Prosperoware Products, (iv) distribute Training Materials to third parties.
The Products may contain features designed to interoperate with Third Party Applications. “Third Party Application(s)” means either on-premise or hosted third party software applications, excluding the Prosperoware Products. You are responsible for obtaining and maintaining access to Third Party Applications from the applicable providers. Prosperoware is not liable to you hereunder and shall not provide You with any refund, credit, or other compensation for any errors, delays, downtime, or non-performance of the Prosperoware Cloud Services caused by the temporary or permanent unavailability of a Third-Party Application, or if You terminate Your subscription or license to the Third-Party Application. If You establish an integration between the Third-Party Application and the Prosperoware Cloud Services, you hereby authorize Prosperoware to access and transmit Partner Data (defined section 5) and Confidential Information, if any, to and/or from the Third-Party Application during the Subscription Term and subject to Prosperoware’s other obligations under this Agreement incident to such transfer. Prosperoware is not responsible for any disclosure, modification or deletion of Partner Data occurring in or caused by a Third-Party Application
ANY PARTNER DATA ENTERED INTO THE TRIAL PRODUCTS MAY BE PERMANENTLY LOST UNLESS PARTNER EXPORTS SUCH PARTNER DATA PRIOR TO TERMINATION OF THIS AGREEMENT.
Prosperoware retains all right, title, and interest in and to the Products, and all copies, improvements, enhancements, modifications, and derivative works of the Products, including, without limitation, all patent, copyright, trade secret, trademarks and other intellectual property rights. Except as set forth herein, Prosperoware grants no express or implied rights under this license to any of Prosperoware’s patents, copyrights, trade secrets, trademarks or other intellectual property rights.
The Products and documentation, any updates, upgrades to the same, and any related training or support materials released by Prosperoware pertaining to the same are the intellectual property of Prosperoware and its licensors, and are protected by applicable copyright and other intellectual property laws. The structure, organization and code of the Products are valuable trade secrets and Confidential Information of Prosperoware. To the extent Licensee opts to provide any comments, feedback, or suggestions about the features and functions of the Products, Prosperoware shall have the right to retain and use these in its current or future products or services without restriction, without compensation to Licensee. Rights not expressly granted by Prosperoware to Licensee hereunder are reserved by Prosperoware and prohibited.
You retain all right, title and interest in and to Your data submitted for processing via the Products (the “Partner Data”), and grants Prosperoware a limited, revocable, worldwide license to use the Partner Data during the term of this Agreement to (a) provide the Products to Licensee, including executing electronic and/or automated transfers of the Partner Data in accordance with the configurations of the Products implemented by Licensee and managing the security of the Products, or (b) comply with applicable law or governmental order.
Upon Prosperoware’s acceptance of the Order Form, Prosperoware will provide Partner and its Users with access to the Products ordered.
7.1. Partner Data. You are responsible for the accuracy, quality and legality of Partner Data. Prosperoware is not obligated to import or export Partner Data. In the event You provide Partner Data to Prosperoware in order to enable Prosperoware to provide access to Product, Prosperoware may use such Partner Data solely to provide the
Product until completion of the applicable Subscription Term. Prosperoware will not retain any Partner Data after the work is complete or the Subscription term has expired.
7.2. Security. “Security Event” means an event in which Partner Data processed by Prosperoware is accessed or received by an individual or entity not authorized to access or receive such information. Prosperoware will take prompt action to respond to any Security Incident and to prevent the further unauthorized use or disclosure of Partner Data, and/or to correct the issues within the Cloud Services giving rise to such Security Incident. Prosperoware will notify Client without undue delay after having become aware of the Security Event.
7.3. Obligations of Partner. Partner is responsible for the security of any components of the Products that are installed by Partner on devices or systems owned or operated by Partner or by third parties on Partner’s behalf. Further, subject to Prosperoware’s confidentiality and use restrictions in this Agreement, Prosperoware is not responsible for any security incidents to the extent caused by: (a) Partner or its contractors downgrading or removing default security settings or configurations within the hosted Products, (b) Partner’s or its contractors’ configuration of local or on-premise components of the Partner Products, or (c) any non-Prosperoware Product applications.
8.1. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, including pricing and other terms set forth in all Order Forms hereunder, business information, specifications, research, software, including but not limited to, the Product and Documentation, trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a Party. Prosperoware Confidential Information includes the Product, and business terms in the Prosperoware Order Form. Your Confidential Information includes Partner Data. Confidential Information does not include statistical information or metadata regarding use of Prosperoware products and services that does not contain any personally identifiable or customer-specific information that would identify You.
8.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission. The Receiving Party will not disclose the Confidential Information of the Disclosing Party except on a need-to-know basis to personnel who are subject to written confidentiality obligations comparably protective as under this Agreement. Prosperoware may use Partner Data to provide Software, Support and Services to You. The Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected loss or unauthorized use, disclosure of or access to the Disclosing Party’s Confidential Information in its possession or control and take all steps reasonably requested by the Disclosing Party to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.
8.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process
8.4. Injunctive Relief. Receiving Party acknowledges that any disclosure not authorized by this Agreement may cause substantial damage to the Disclosing Party for which a compensation of damages would not be a fully adequate remedy. In the event of any such breach of Agreement, in addition to any other available remedies, Disclosing Party shall have the right to seek injunctive relief without being required to post a bond or other security.
9.1. Subscription Product. This Agreement shall continue until the end of the Subscription Term, unless earlier terminated as set forth in this section.
9.2. Termination. Either Party may terminate this Agreement at any time on prior written notice to each other. This Agreement shall terminate if You violate or fail to comply with any provision of this Agreement or Order Form. Any termination of this Agreement shall also terminate the licenses granted hereunder.
9.3. Effect of Termination. Upon termination of this Agreement, you shall cease use of the Software, and shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software and Documentation. In addition, each party shall remove and destroy any Confidential Information of the other and shall certify in writing that such actions have occurred. Termination shall not relieve You of the obligation to pay any fees accrued or payable to Prosperoware under the Agreement or applicable Order Form. Your confidentiality obligations, and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. Upon the effective date of termination, Customer’s license to use the Cloud Services will cease and Prosperoware may delete all Partner Data from Prosperoware systems.
9.4. Suspension. Prosperoware reserves the right to suspend access to the Products at any time without notice to you.
10.1. You represent and warrant You have enough rights and have obtained all necessary consents and permissions to provide Prosperoware with copies of or access to any Partner Data You may disclose to Prosperoware under this Agreement.
10.2. DISCLAIMER. PRODUCTS ARE PROVIDED SOLELY AND EXCLUSIVELY “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT.
YOU ASSUME AND UNCONDITIONALLY RELEASES PROSPEROWARE FROM ALL RISKS ASSOCIATED WITH THE USE OF ANY PRODUCTS. All rights not granted under this Agreement are reserved by Prosperoware.
The Products are not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms.
12.1. LIMITED LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE INCURRED, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROSPEROWARE’S ENTIRE LIABILITY IN CONNECTION WITH ANY USE OF THE PRODUCTS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT, AS TO ANY INDIVIDUAL CLAIM OR IN THE AGGREGATE, EXCEED $500. IF PARTNER DOES NOT AGREE TO THE ALLOCATION OF RISK IN THIS SECTION, ITS SOLE RECOURSE IS TO IMMEDIATELY DISCONTINUE THE USE OF THE PRODUCTS. The foregoing limitations will apply even if the above stated warranties fail of their essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply.
13.1. Choice of Law.
13.1.1. Where You are domiciled in the United States, Canada, Mexico and the Americas, this Agreement shall be governed by the laws of the State of New York, excluding its conflict of law rules, and copyright law, which is governed by U.S. federal law. The courts of New York County, New York shall have exclusive jurisdiction.
13.1.2. Where You are domiciled anywhere else in the world, this Agreement will be governed by English law, excluding its conflict of law rules. The courts of London, England shall have exclusive jurisdiction.
13.1.3. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The prevailing party in any litigation hereunder shall be entitled to recover attorney’s fees.
13.2. Assignment. You may not assign, sublicense or transfer this Agreement. Prosperoware expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Any prohibited assignment or sublicense shall be null and void.
13.3. Modification. This Agreement may be modified only by Prosperoware. Changes and their applicable date will be posted to the Prosperoware website. Prosperoware reserves the right to audit Your use of the Software upon prior written notice, during reasonable business hours and at Prosperoware’s expense.
13.4. Miscellaneous. Prosperoware’s third party suppliers or licensors are third party beneficiaries of this Agreement and are entitled to enforce directly against You provisions of this Agreement pertaining to Your access to or use of their licensed Software, or provisions designed to disclaim or limit their obligations and liabilities. The parties shall not be liable for any failure to perform due to causes beyond their reasonable control (except for any payment of money hereunder).
13.5. Compliance with Law. You will comply with all applicable laws and regulations in Your use of the Product or other technical data provided by Prosperoware under this Agreement, including all applicable export or import laws and regulations. You shall not directly or indirectly export, import, download or transmit the Software to any country, end user or for any Use that is prohibited by applicable United States regulation or statute including but not limited to those countries embargoed by the United States government.
13.6. Waiver, Enforceability. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision, which approximates the intent and economic effect of the affected provision.
13.7. Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. All terms of Your purchase order or order confirmation shall be superseded by this Agreement and shall be of no force or effect. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement. You hereby agree Prosperoware may list Your name on its list of customers using the Product. In the event of a conflict between the Order Form and the Agreement, the Order Form shall control for that Order.
Version Updated: 01/2020
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