Plumly Terms of Service
- Scope. The Plumy Terms of Service (the “Agreement”) cover the responsibilities and obligations of Prospr Technologies LLC. d/b/a Plumly (“Plumly”) and your organization (the “Customer”) as the Customer uses the Plumly software (the “Software”).
- License. Subject to the terms and conditions of this Agreement, Plumly grants to Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Software as limited by the number of and types of users for which the Customer has paid applicable fees to Plumly (“Authorized Users”) and for the period of time such fees applied (the “Term”). Each Authorized User’s access and use of the Software shall be subject to this Agreement, and violations of such terms or conditions may result in suspension or termination of the applicable account.
- Restrictions. Customer shall not, except as expressly authorized or directed by Plumly: (a) copy, modify, translate, distribute, disclose or create derivative works based on the contents of, or sell, the Software, or any part thereof; (b) decompile, disassemble or otherwise reverse engineer the Software or otherwise use the Software to develop functionally similar Software or services; (c) modify, alter or delete any of the copyright, trademark, or other proprietary notices in or on the Software; (d) rent, lease or lend the Software or use the Software for the benefit of any third party; (e) avoid, circumvent or disable any security or digital rights management device, procedure, protocol or mechanism in the Software; or (f) permit any Authorized User or third party to do any of the foregoing. Customer also agrees that any works created in violation of this section are derivative works, and, as such, Customer agrees to assign, and hereby assigns, all right, title and interest therein to Plumly. Customer will not permit Authorized Users to access or use any Product in a U.S.-embargoed country or otherwise in violation of any U.S. export law or regulation.
- Reservation of Rights. THIS SUBSCRIPTION SOFTWARE IS LICENSED, NOT SOLD. Subject to the limited rights expressly granted hereunder, all rights, title and interest in and to all Software, including all related IP Rights, are and shall remain the sole and exclusive property of Plumly or its third-party licensors. “IP Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide. Customer shall notify Plumly of any violation of Plumly’s IP Rights in the Software and shall reasonably assist Plumly as necessary to remedy any such violation.
- Payments. In consideration of the Software, Customer will pay to Plumly the fees specified by Plumly when the Customer initiates service or changes the feature or Authorized Users. All state or local sales, use or gross receipts taxes, and federal excise taxes will be included in the documented fees or explicitly identified.
- Account Information. For subscription Software, the authentication of Authorized Users is based in part upon information supplied by Customer or Authorized Users, as applicable. Customer will and will cause its Authorized Users to (a) provide accurate information to Plumly or a third-party authentication service as applicable, and promptly report any changes to such information, (b) not share or allow others to use their account, (c) maintain the confidentiality and security of their account information, and (d) use the Software solely via such authorized accounts. Customer agrees to notify Plumly immediately of any unauthorized use of its or its Authorized Users’ accounts or related authentication information. Plumly will not be responsible for any losses arising out of the unauthorized use of accounts created by or for Customer and its Authorized Users.
- Confidentiality. Customer acknowledges that, in connection with this Agreement, Plumly has provided or will provide to Customer and its Authorized Users certain sensitive or proprietary information, including software, source code, assessment instruments, research, designs, methods, processes, customer lists, training materials, product documentation, know-how and trade secrets, in whatever form (“Confidential Information”). Customer agrees (a) not to use Confidential Information for any purpose other than use of the Software in accordance with this Agreement and (b) to take all steps reasonably necessary to maintain and protect the Confidential Information of Plumly in strict confidence. Confidential Information shall not include information that, as evidenced by Customer’s contemporaneous written records: (i) is or becomes publicly available through no fault of Customer; (ii) is rightfully known to Customer prior to the time of its disclosure; (iii) has been independently developed by Customer without any use of the Confidential Information; or (iv) is subsequently learned from a third party not under any confidentiality obligation.
- Customer Materials. Customer represents, warrants and covenants that it has all the necessary rights, including consents and IP Rights, in connection with any data, information, content and other materials provided to or collected by Plumly on behalf of Customer or its Authorized Users using the Software or otherwise in connection with this Agreement (“Customer Materials”), and that Plumly has the right to use such Customer Materials as contemplated hereunder or for any other purposes required by Customer. Customer is solely responsible for the accuracy, integrity, completeness, quality, legality and safety of such Customer Materials.
- Warranty Disclaimer. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND BY PLUMLY. PLUMLY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. CUSTOMER ASSUMES RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE CUSTOMER’S INTENDED RESULTS AND FOR THE ACCESS AND USE OF THE SOFTWARE, INCLUDING THE RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, PLUMLY MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS. PLUMLY IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY THIRD PARTY CONTENT INCLUDED IN THE SOFTWARE. ANY ACCESS TO OR USE OF SUCH THIRD PARTY CONTENT AND SOFTWARE MAY BE SUBJECT TO THE TERMS AND CONDITIONS AND INFORMATION COLLECTION, USAGE AND DISCLOSURE PRACTICES OF THIRD PARTIES. THIS AGREEMENT DOES NOT CREATE ANY RELATIONSHIP BETWEEN CUSTOMER AND ANY THIRD PARTY, AND NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY PLUMLY WITH RESPECT TO ANY THIRD PARTY CONTENT OR SOFTWARE.
- Limitation of Liability. IN NO EVENT SHALL PLUMLY BE LIABLE TO CUSTOMER OR TO ANY AUTHORIZED USER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR COVER DAMAGES, DAMAGES FOR LOST PROFITS, LOST DATA OR LOST BUSINESS, OR ANY OTHER INDIRECT DAMAGES, EVEN IF PLUMLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PLUMLY’S ENTIRE LIABILITY TO CUSTOMER OR ANY AUTHORIZED USER ARISING OUT OF PERFORMANCE OR NONPERFORMANCE BY PLUMLY OR IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE OF CUSTOMER’S OR ANY AUTHORIZED USER’S DIRECT DAMAGES UP TO THE FEES PAID BY CUSTOMER TO PLUMLY FOR THE AFFECTED PORTION OF THE SOFTWARE IN THE PRIOR 12 MONTH-PERIOD. UNDER NO CIRCUMSTANCES SHALL PLUMLY BE LIABLE FOR ANY CONSEQUENCES OF ANY UNAUTHORIZED USE OF THE SOFTWARE THAT VIOLATES THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION.
- Term; Termination. This Agreement will be in effect until terminated as described herein. The Customer may terminate this agreement at any time, however Fees payable for the current 1 month period shall not be refundable. Plumly may terminate this agreement or modify its prices with 90 days’ written notice to the Customer, and such termination or modification will take effect at the end of the period for which the Customer has already paid Fees. Without prejudice to any rights either party may have under this Agreement, in law, equity or otherwise, a party shall have the right to terminate this Agreement if the other party (or in the case of Plumly, an Authorized User) materially breaches any term, provision, warranty or representation under this Agreement and fails to correct the breach within 30 days of its receipt of written notice thereof. Upon termination, Customer will: (a) cease using the Software, (b) return, purge or destroy (as directed by Plumly) all copies of any Software and, if so requested, certify to Plumly in writing that such surrender or destruction has occurred, (c) pay Plumly any fees due and owing hereunder, and (d) not be entitled to a refund of any fees previously paid, unless such fees were paid in advance for services not yet rendered at the time of termination. Sections 3-12 shall survive the termination of this Agreement.
- Miscellaneous. This Agreement, including all addendums and attachments, as applicable, constitutes the entire agreement between the parties relating to the subject matter hereof. The provisions of this Agreement shall supersede any conflicting terms and conditions in any previous correspondence or verbal communication and shall supersede and cancel all prior agreements, written or oral, between the parties relating to the subject matter hereof. Plumly may modify this Agreement from time to time, which will grant the Customer the right to terminate the Agreement immediately and be entitled to all Fees for services not yet rendered. All defined terms in this Agreement shall apply to their singular and plural forms, as applicable. The word “including” means “including without limitation.” This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of California, without giving effect to the choice of law rules thereof. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another. Each party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection herewith. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by Customer or any Authorized User without the prior written consent of Plumly. If one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable at law, such provisions shall be construed by the appropriate judicial body to limit or reduce such provision or provisions so as to be enforceable to the maximum extent compatible with applicable law. Plumly shall have no liability to Customer or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including acts of God or nature, fires, floods, strikes, civil disturbances or terrorism or interruptions in power, communications, satellites, the Internet or any other network.
