Proficio Service Agreement

Managed Security-As-A-Service Agreement
IMPORTANT: PLEASE READ THIS MANAGED SECURITY-AS-A-SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.

  1.  Definitions. “You” and “your” refers to the individual or entity that has ordered managed security-as-a-service from ProSOC, Inc. dba Proficio (“Proficio”) or an authorized party by executing the ordering document that accompanies and incorporates this managed security-as-a-service agreement (collectively, this “agreement”). Managed security-as-a-service consists of Proficio’s ProSOCTM services as well as any other services provided by Proficio and ordered by you pursuant to the ordering document (collectively, the “services”). The term “services documentation” refers to the materials provided by Proficio as part of the services. The term “Proficio programs” refers to the software products owned or licensed by Proficio to which Proficio grants you access as part of the services, including services documentation, and any program updates provided as part of the services. With respect to certain services, such as Proficio’s ProVIEWTM services, the term “users” shall mean only those individuals authorized by you or on your behalf to use such services, as defined in the ordering document. The term “your data” refers to the data that resides in your services environment. The term “ordering document” refers to the ordering document entered into by the parties that accompanies and incorporates this managed security-as-a-service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
  2.  Applicability of Agreement. This agreement is valid solely with respect to the ordering document which this agreement accompanies.
  3.  Rights Granted. Upon Proficio’s acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-assignable, royalty-free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of this agreement. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with this agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document. You acknowledge that Proficio has no delivery obligation and will not ship copies of the Proficio programs to you as part of the services. You agree that you do not acquire under this agreement any license to use the Proficio programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of this agreement or the services thereunder, your right to access or use the Proficio programs specified in the ordering document and the services shall terminate.
  4. Cooperation. You agree to provide all reasonable cooperation, assistance and information to Proficio in a timely manner in order to successfully achieve the objectives of this agreement and the ordering document. You agree that the information you provide to Proficio will be accurate and complete at the time it is provided, and that the information will be updated in the event of any material changes. Proficio’s obligations under this Agreement are subject to your compliance with these commitments. You acknowledge that the schedule for performance of the services may require adjustment in the event your responsibilities are not completed as scheduled.
  5.  Ownership and Restrictions.
    5.1 You retain all ownership and intellectual property rights in and to your data. Proficio or its licensors retain all ownership and intellectual property rights to the services and Proficio programs. Proficio retains all ownership and intellectual property rights to anything developed and delivered under this agreement.
    5.2 You may not: (a) remove or modify any program markings or any notice of Proficio’s or its licensors’ proprietary rights; (b) make the programs or materials resulting from the services available in any manner to any third-party for use in the third-party’s business operations; (c) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services, or access or use the services in order to build or support, and/or assist a third-party in building or supporting, products or services competitive to Proficio; (d) disclose results of any services without Proficio’s prior written consent; and (e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Proficio programs or materials available, to any third-party other than, as expressly permitted under the terms of this agreement.
    5.3 The rights granted to you under this agreement are also conditioned on the following: (a) the rights of any user licensed to use certain services (e.g., a “named user” of Proficio’s ProVIEWTM services) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license); (b) except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and (c) you agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.
  6. Representations and Warranties.
    6.1 Each party represents and warrants as follows: (a) it has read this agreement and understands it; (b) it has had the opportunity to obtain the advice of an attorney regarding this Agreement; (c) it has the necessary power and authority under all applicable laws and regulations to enter into this agreement and to perform its obligations set forth in this agreement, including, as to you, the obligation to pay money to Proficio in U.S. Dollars; (d) it has authorized and approved the execution of this agreement by the individual signing below; and (e) this agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
    6.2 Proficio warrants to you that the services will be performed in a professional and workman-like manner and substantially in accordance with the services documentation. Any claims with respect to the foregoing warranties must be reported in detail in writing to Proficio within 30 days after you first became aware of the claimed breach of warranty (the “warranty period”). If you make a warranty claim during the warranty period and the services prove not to be in compliance with the applicable warranty, then Proficio shall have 30 days, at Proficio’s sole election, to make commercially reasonable efforts to re-perform the applicable services, at no extra charge to you. Such re-performance of the services shall be Proficio’s exclusive obligation and liability, and your sole remedy, for any breach of any of the foregoing warranties.
  7. Warranty Disclaimer. EXCEPT AS EXPLICITLY OTHERWISE SET FORTH IN SECTION 6 ABOVE, ANY SERVICES PROVIDED BY PROFICIO HEREUNDER ARE PROVIDED “AS IS,” AND PROFICIO HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT.
  8. Limitation of Liability. IN NO EVENT SHALL PROFICIO BE LIABLE TO YOU OR YOUR AFFILIATES UNDER THIS AGREEMENT OR THE ORDERING DOCUMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS OR SERVICES) AND/OR PUNITIVE DAMAGES, ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND WHETHER SUCH DAMAGES ARE BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PROFICIO’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR INDEMNIFICATION, EXCEED THE ACTUAL AMOUNTS RECEIVED BY PROFICIO FROM YOU IN ACCORDANCE WITH A PARTICULAR ORDERING DOCUMENT THAT HAS CAUSED YOUR CLAIM. IN NO EVENT WILL PROFICIO HAVE LIABILITY FOR AN ERROR, DEFECT OR ANY LIABILITY CLAIM BASED ON A THIRD-PARTY PLATFORM, SOFTWARE OR HARDWARE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
  9. Indemnification.
    9.1 Proficio will defend or settle at its sole expense any claim brought against you by a third party alleging that the services performed by Proficio infringe any copyright or misuse or misappropriate a trade secret of such third party under U.S. law, and Proficio will pay all damages finally awarded or costs of settlement therefor. However, Proficio will have no liability for any claim based upon: (a) the use, operation, or combination of the services provided by Proficio with hardware, software and/or other materials not supplied or approved by Proficio, (b) any modifications or alterations to the services not specifically authorized in writing by Proficio, (c) Proficio’s compliance with your specifications, instructions, or designs, (d) your breach of this agreement, or (e) any hardware, software and/or other materials provided by you. The foregoing states Proficio’s sole and exclusive obligation with regard to any claim of infringement or misuse or misappropriation of intellectual property rights and your sole remedy.
    9.2 Proficio’s obligation to indemnify you is conditioned on the following: (a) prompt notice of the claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided by you; (b) you will cooperate with Proficio in all reasonable respects in connection with the defense of any such action; and (c) Proficio will have sole control of the defense and settlement of any claims for which it provides indemnification hereunder; provided that no settlement is entered without your prior written consent if such settlement requires any admission of fault or wrong doing or any public statement by you, or is not a full and complete settlement of all claims against you. You will have the right to retain separate counsel and participate in the defense of the action or claim at your own expense.
  10. End of Agreement. Services provided under this agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with this agreement. The term of the services and any renewal years are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including any programs listed in the ordering document, shall end.
  11. Termination. Neither Proficio nor you may terminate this agreement and/or the ordering document at any time without cause. If either Proficio or you breach a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. If Proficio ends the ordering document as specified in the preceding sentence, you must pay immediately all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under this agreement plus related taxes and expenses. Upon the expiration or termination of this agreement or the ordering document for any reason, all outstanding amounts will become immediately due and payable, and you will pay all outstanding invoices to Proficio within 5 days of such expiration or termination. Proficio will have no obligation to make any refunds to you. Provisions that survive termination or expiration of this agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive. This agreement and the ordering document will terminate effective immediately upon written notice if (a) all or a substantial portion of the assets of either party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy, (b) a proceeding is commenced by or against either party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within 60 days, or (c) either party is adjudged bankrupt.
  12. Fees and Taxes. You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under this agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Proficio must pay based on the services you ordered, except for taxes based on Proficio’s income. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. If any amount payable by you under this agreement is not paid when due, Proficio will be entitled to suspend provision of the services until such time as payment is made in full and may assess interest at the rate of 1.5% per month on any overdue payments, or the maximum amount permitted by applicable law, whichever is less.
  13. Nondisclosure. By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). Each of Proficio and you agree to disclose only information that is required for the performance of its obligations under this agreement. Confidential information shall be limited to the terms and pricing under this agreement, your data residing in the services environment, and all information which a reasonable person would understand to be confidential at the time of disclosure. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. Proficio and you each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, Proficio and you each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this agreement. Proficio will protect the confidentiality of your data residing in the services environment in accordance with the Proficio security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the confidential information to a governmental entity as required by law.
  14. Entire Agreement. You agree that this agreement (including the information which is incorporated into this agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this agreement. It is expressly agreed that the terms of this agreement, including any ordering document, shall supersede the terms in any purchase order or other non-Proficio document and no terms included in any such purchase order or other non-Proficio document shall apply to the services ordered. This agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Proficio Store by authorized representatives of Proficio and you.
  15. Export Control. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree 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.
  16. Other.
    16.1 Proficio is an independent contractor and you agree that no partnership, joint venture, or agency relationship exists between us. You will be responsible for paying your own employees, including employment related taxes and insurance.
    16.2 This agreement is governed by the substantive and procedural laws of California and you and Proficio agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Diego county in California in any dispute arising out of or relating to this agreement.
    16.3 If you have a dispute with Proficio or if you wish to provide a notice under the Indemnification section of this agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Proficio, 1555 Faraday Avenue, Carlsbad, California 92008 USA, Attention: Legal Department. Proficio may give notice applicable to you by means of a general notice on the Proficio portal for the services, and notices specific to you by electronic mail to your e-mail address on record in your account information or by written communication sent by national courier service to your address on record in your account information.
    16.4 You may not assign this agreement or give or transfer the services or an interest in them to another party.
    16.5 Except for actions for nonpayment or breach of Proficio’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued.
    16.6 Neither of us shall be responsible for failure or delay of performance if caused by any event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
    16.7 You agree that Proficio may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and to develop a brief customer profile for use by Proficio on Proficio.com for promotional purposes.