This Progressive Plans End User License Agreement constitutes an agreement between you (“Customer”) and Progressive Plans, Inc., a Utah corporation with its principal place of business at Attn: Progressive Plans, 2701 N Thanksgiving Way Unit 100, Lehi, UT 84043(“Progressive Plans”). Progressive Plans is the owner and operator of the Progressive Plans mobile application, website applications, and related online services (the “Subscription Service”).
Downloading, installing, and using the Subscription Service is subject to the terms and conditions contained in the Progressive Plans End User License Agreement (the “EULA”) set forth below. In continuing to access or use the Subscription Service, Customer agrees to be bound by those terms and conditions within the EULA applicable to its use.
- CONSENT TO ELECTRONIC RECORDS AND SIGNATURE
Progressive Plans may ask Customer to review important disclosures or agreements about the Progressive Plans Subscription Service. Customer reaffirms that Customer agrees to
- LICENSE AND TERMS OF USAGE
- Subscription Service and Mobile Application. For the purposes of this Agreement, the term Customer refers to any users of the Service, whether that user is an individual or a legal entity through its employees, representatives, agents, subcontractors, or other designated users. Subject to Customer’s compliance with the terms and conditions of this Agreement, upon registration, Progressive Plans grants to Customer a non-exclusive, non-transferable, non- sublicensable, revocable right and license to install and use the mobile application (“Mobile App”) and other elements of the Subscription Service solely in connection with Customer’ s internal business use.
- Registration and Protection of Account Information. During the registration process for the Subscription Service, either on the Progressive Plans website or by the Mobile App, Customer must provide a valid email address and create a password (“Account Information”). Customer agrees that Progressive Plans may use its Account Information to authenticate Customer on the Subscription Service. Customer may not share its Account Information with anyone other than as expressly set forth herein. Customer is responsible for maintaining the confidentiality of its Account Information, and, provided that Customer acts negligently or willfully, Customer is responsible for all uses of the Subscription Service using its Account Information, whether or not authorized by Customer. Customer must keep its Progressive Plans account information current and promptly notify Progressive Plans at firstname.lastname@example.org of any unauthorized use of its account or if its email or password has been hacked, used without its consent, or stolen or if Customer discovers any other breach of security. Progressive Plans reserves the right to suspend or discontinue all or part of Customer’s access to the Subscription Service at any time without prior notice for unauthorized use of its Account Information or for violating the User Restrictions set forth below in Section 2.c (User Restrictions).
- User Restrictions. Customer agrees not to misuse the Progressive Plans Subscription Service. Customer may not
- sublicense, sell, transfer, assign, distribute, or otherwise commercially exploit the Subscription Service;
- modify or create derivative works based on the Subscription Service;
- create Internet “links” to the Subscription Service or “frame” or “mirror” any content provided in connection therewith without permission; or
- reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Mobile App software or access the Subscription Service in order to build a product using features, functions, or graphics similar to the Subscription Service;
- copy any features, functions, or graphics of the Subscription Service;
- allow the Subscription Service to be used by any User who is not registered with Progressive Plans for that User license;
- impersonate or misrepresent its affiliation with any person or entity
- use the Subscription Service to:
- send unsolicited or unlawful messages;
- send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights;
- send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, or agents;
- interfere with or disrupt the integrity or performance of the Subscription Service or the data contained therein; or
- attempt to gain unauthorized access to the Subscription Service or its related systems or networks;
- probe, scan, or test the vulnerability of any system or network.
- Customer License to Progressive Plans. Progressive Plans is free to use any ideas, concepts, know-how, or techniques contained in any Customer communications to Progressive Plans for any internal business purpose including, but not limited to, developing and marketing products using such information.
- Uploaded Content. Subject to Sections 2.c (“User Restrictions”) and 3.d (“Customer Representations and Warranties Regarding Content”), Customer may upload an unlimited number of architectural plans, building plan prints, or other documents, such as specifications, schedules, daily reports, cut-sheets, and other similar documents in connection with Projects (“Content”) to be used in connection with the Subscription Service. Customer must create a new Project for each building lot or address.
- Content Customers Create and Share on the Subscription Service. The Subscription Service permits Customers to create, modify, copy, and share Content, such as annotations to documents. Depending upon Customer or its Users level of administrative privileges for a project, Customer’s Content may be altered or deleted permanently by other Subscription Service users. Progressive Plans has no responsibility for how Customer shares its Content or how others may modify, copy, alter, or delete it, and Customer should consider carefully what Customer chooses to share or make public and what Customer chooses to save or backup.
- Content Ownership. Progressive Plans does not verify, endorse, or claim ownership of any Content, and account holders retains all right, title, and interest in and to the Content upload or created by itself or its assigned users. Content may be stored or backed-up on Progressive Plans’ servers or on servers of trusted third parties as necessary for Progressive Plans to provide the Subscription Service, and in accordance with Progressive Plans’ then-current storage practices. Customer should retain backup copies of its Content at all times.
- Customer Representations and Warranties Regarding Content. Customer represents, warrants, and covenants that
- it is the owner, licensee, or authorized user of all Content; and
- it will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that:
- advocates, promotes, incites, instructs, informs, assists, or otherwise encourages violence or any illegal activities;
- infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Progressive Plans, or any rights of publicity or privacy of any party;
- promotes, solicits, or comprises inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic, or otherwise objectionable or unlawful content or activity, including Content that is harmful to minors;
- contains any viruses, Trojan horses, worms, time bombs, or any other similarly harmful computer code, files, scripts, or agents software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or
- violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
- Content and Use Monitoring. Progressive Plans may review Content for compliance with community guidelines, but Customer acknowledges that Progressive Plans has no obligation to monitor any information on the Site or the Mobile App. Progressive Plans does not generally monitor user activity occurring in connection with the Subscription Service, and while Progressive Plans disclaims any responsibility to do so, it reserves the right to access any Content to:
- perform the Subscription Service, including but not limited to during a Subscription Service interruption as necessary to restore the applicable Content or to troubleshoot any issue with the Subscription Service or to help improve the Subscription Service;
- screen, by mechanical means or otherwise, for objectionable information transmitted or shared by user on individualized portions of the Subscription Service,
- monitor the Content and if in Progressive Plans’ sole discretion, Progressive Plans considers the Content to be objectionable or to breach Customer’s representations and warranties, Progressive Plans may remove Content and/or remove any information personalized by Customer, from Subscription Service at any time without notice, and
- monitor Customer’s usage of the Site and Mobile App to ensure compliance with this Agreement.
If Progressive Plans becomes aware of any possible violations by Customer of Sections 2(c) (“User Restrictions”) or 3(d) (“Customer’s Representations and Warranties Regarding Content”) or any other provision of this Agreement, Progressive Plans reserves the right to investigate such violations, and Progressive Plans may, at its sole discretion, terminate Customer’s use of the Subscription Service or change, alter, or remove Content, in whole or in part, without prior notice to Customer.
- OWNERSHIP OF INTELLECTUAL PROPERTY
As between Progressive Plans and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Content. As between Progressive Plans and Customer, Progressive Plans (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Subscription Service and the Progressive Plans Technology. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the Progressive Plans name, the Progressive Plans logo, and the product names associated with the Subscription Service are trademarks of Progressive Plans or third parties, and no license to such marks is granted herein.
- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES
- While Progressive Plans strives to ensure that the Subscription Service does not alter any part of the Content, Progressive Plans does not guarantee that alterations may never occur or that what is displayed in the Mobile App or on its Site may at all times be a complete rendering of all Content. Progressive Plans is not responsible for the accuracy, completeness, appropriateness, attribution, or legality of the Content, files, user posts, annotations, markups, or any other information Customer may be able to access using the Subscription Service. Ultimately it is Customer’s responsibility to check that Customer’s Content as displayed on the Subscription Service is an accurate rendering of Customer’s Content as originally uploaded.
- The Subscription Service and the Mobile App are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. To the full extent permitted by law, Progressive Plans, its affiliates, contractors, subscription service providers, employees, agents, licensors, and any other party involved in creating, producing, or delivering the subscription service disclaim all warranties and representations of any kind, express, implied, or statutory, all warranties of merchantability, fitness for a particular purpose, and non- infringement. Progressive Plans is not responsible for any harm to Customer’s or any user’s computer system, loss or corruption of data or content, or other harm that results from Customer’s or any user access to or use of the Site or Mobile App. Without limiting the foregoing, Progressive Plans does not warrant or represent that the subscription service will be continuous, secure, reliable, accessible, uninterrupted, or error-free.
- Progressive Plans is not liable to Customer or to any third party for any direct, special, incidental, punitive, cover, or consequential damages (including, but not limited to, damages for the inability to use the Subscription Service or access content, loss of business, loss of profits, business interruptions, Customer’s reliance on corrupted, incomplete, or missing content or the like), arising out of the use of, or inability to use, the Subscription Service or the Mobile App or Site and based on any theory of liability including statute, breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if Progressive Plans or its representatives have been advised of the possibility of damages and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. Progressive Plans’ total liability to customer for actual damages for any cause whatsoever will be limited to $100 or the actual amounts customer paid for the service during the events actually causing damages, whichever is larger.
- The limitations on liability in this Section are intended to apply to the warranties and disclaimers above and all other aspects of this Agreement. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, or for the exclusion of implied warranties so the above limitation or exclusion may not apply to Customer and Customer may also have other legal rights in its jurisdiction.
- Collection and Storage of Customer’s Personal Information. By using the Subscription Service, Customer agrees and acknowledges that personal information collected about Customer through the Site or the Mobile App or in any way in connection with the Subscription Service may be transferred across national boundaries for storage or process to any of the countries around the world. This includes the location or the universally unique identifier of any Device Customer uses to access the Mobile App and their phone number(s).
- COPYRIGHT INFRINGEMENT
Progressive Plans respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (the “DMCA”), Progressive Plans shall respond expeditiously to claims of copyright infringement committed using the Site or the Mobile App if such claims are reported to Progressive Plans’ Designated Copyright Agent identified in the sample notice below.
DMCA Notice of Alleged Infringement (“Notice”)
- Identify the copyrighted work that Customer claims has been infringed, or if multiple copyrighted works are covered by this Notice, Customer may provide a representative list of the copyrighted works that Customer claim have been infringed.
- Identify the material or link Customer claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
- Provide Customer’s company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide Customer’s full legal name and electronic or physical signature.
- Deliver this Notice, with all items completed, to Progressive Plans’ Designated Copyright Agent: Attn: Copyright Agent
Progressive Plans, Inc.
2701 N Thanksgiving Way Unit 100
Lehi, UT 84043
- Content Accuracy. Customer warrants and guarantees that the Project Content is accurate and up-to-date throughout the duration of the Project until completion. Customer shall update or amend all Content as changes in the Project are made.
- SURVIVAL. All provisions of this Agreement, other than Section 2 survive any termination or suspension of this Agreement.
- GOVERNING LAW. By accessing and using the Subscription Service, Customer and Progressive Plans agree that all matters relating to this Agreement and Customer’s access to, or use of, the Subscription Service shall be governed by and construed in accordance with the substantive laws in force in the State of Utah without regard for its conflicts of law principles. All claims arising out of or relating to the terms of this Agreement or the Subscription Service must be litigated exclusively in the federal or state courts of Utah County, Utah.
- INTERNATIONAL USE. If Customer chooses to access the Subscription Service from a location outside of the United States, Customer does so at its own initiative, and is solely responsible for compliance with local laws and all liability therefore. The export and re-export of the Mobile App software may be controlled by the United States Export Administration Regulations. The software may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States. If Customer is a resident or national of, or a business located in, any of those countries, Customer may not download or use the Subscription Service.
THE FOLLOWING ADDITIONAL TERMS SHALL APPLY TO ANY USERS PAYING FOR PROGRESSIVE PLANS’ SUBSCRIPTION SERVICE. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS BELOW AND THE END USER LICENSE AGREEMENT, THE TERMS OF THE BELOW PREMIUM SERVICE SUBSCRIPTION AGREEMENT SHALL PREVAIL.
PREMIUM SERVICE SUBSCRIPTION AGREEMENT
This Progressive Plans Master Subscription Agreement constitutes an agreement between you (“Customer”) and Progressive Plans, Inc., a Utah corporation with its principal place of business at Attn: Progressive Plans, 2701 N Thanksgiving Way Unit 100, Lehi, UT 84043 (“Progressive Plans”). Progressive Plans is the owner and operator of the Progressive Plans mobile application, website, and related Subscription Service (the “Subscription Service”). This Agreement governs Customer’s use of the Progressive Plans Premium Subscription Service.
- “Agreement” means, collectively, this Premium Service Master Subscription Agreement, and the attached exhibits hereto, as well as any Order Form executed by the parties, each of which are incorporated herein by this reference.
- “Customer Data” means any Customer-specific data, materials, or content provided or submitted to or through the Premium Service.
- “Confidential Information” means this Agreement, the Progressive Plans Technology, Progressive Plans pricing information, information or material that is commercially valuable to the Progressive Plans and not generally known or readily ascertainable in the industry. This includes, but is not limited to:
- technical information concerning Progressive Plans’ products and services, including product know-how, formulas, designs, devices, diagrams, software code, test results, processes, inventions, research works and product development, technical memoranda, and correspondence;
- information concerning Progressive Plans’ business, including cost information, profits, sales information, accounting and unpublished financial information, business plans, markets and marketing methods, customer lists and customer information, purchasing techniques, supplier lists and information, and advertising strategies;
- information concerning Progressive Plans’ employees, including salaries, strengths, weaknesses, and skills;
- information submitted by Progressive Plans’ customers, suppliers, employees, consultants, or co-venture partners with Progressive Plans for study, evaluation, or use;
- any other information not generally known to the public which, if misused or disclosed, could reasonably be expected to adversely affect Progressive Plans’ business; and
- and any other information disclosed by one party (“Customer”) to the other (“Progressive Plans”) hereunder.
- “Content” means building plan prints, photos, images, cut sheets, other documents uploaded by Users or any annotations, notes or other written or electronic additions to those documents, contact information, pricing, supply lists, schedules, estimates, text messages, in-app communication.
- “Documentation” means the online help Progressive Plans provides for use with the Premium Services.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade name, domain name right, trade secret, know-how, or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Order Form” means a document or website page that details the Service(s) to be provided by Progressive Plans, the associated fees, and other related details. If multiple Order Forms will apply to this Agreement, they will each have their own unique identifier. All duly executed Order Form(s) are deemed incorporated herein by this reference. Each Order Form is intended to define a separate contract particular to that order, incorporating by reference this Agreement. An Order Form may also contain other terms or conditions, mutually agreed upon in writing by Progressive Plans and Customer, which apply specifically to that particular order/contract. Customer agrees that each Order Form will be signed by a representative having the authority to bind Customer, and that Progressive Plans may presume that such representative has such authority.
- “Premium Service(s)” or “Service(s)” means the SaaS-based service provided by Progressive Plans pursuant to an Order Form that provides additional functions and services as compared to the Progressive Plans free service.
- “Professional Services” means the implementation, configuration, or training services to be provided by Progressive Plans to Customer pursuant to an Order Form.
- “Service Term” means the Order Form-specified period during which the Premium Service is available.
- “Progressive Plans Technology” means Progressive Plans’ proprietary software and other technology provided via the Premium Service, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.
- “User” means Customer or Customer’s affiliates, employees, contractors, or agents whom Customer expressly authorizes to use the Premium Service.
- PROVISION OF PREMIUM SERVICE.
- End User License Agreement. All terms of the End User License Agreement (“EULA”), currently available at [insert web address] are explicitly incorporated here by reference. Any conflict between this Master Subscription Agreement and the terms of the End User License Agreement, any Order Form, or other exhibit hereto, shall be resolved in the following order: (a) any Order Form; (b) this Master Subscription Agreement (c) the End User License Agreement.
- Provision of Premium Service; Access Right. Subject to the terms and conditions of this Agreement, during the applicable Service Term, Progressive Plans must provide Customer and its Users with the Premium Services, purchased on a subscription basis, described on one or more Order Form(s). Customer shall designate User accounts for each of its users and subject to law or other regulation, it may change or delete Progressive Plans access service Account Information for any of its Users. Progressive Plans may update the content, functionality, and user interface of the Premium Service from time to time. Although Progressive Plans may substitute substantially equivalent features, Progressive Plans may not materially reduce the function of the Premium Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Progressive Plans grants to Customer a non-exclusive, non-transferrable, non-sublicenseable, revocable right, and license to install and use the mobile application (“Mobile App”), Progressive Plans website (“Site”), and other elements of the Premium Service solely in connection with Customer’s internal business use. Progressive Plans reserves all rights not expressly granted hereunder.
- Service Level Agreement. Progressive Plans shall maintain commercially reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data. Progressive Plans must
- make the Premium Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms,
- provide Progressive Plans standard support for the Premium Services to Customer at no additional charge, and
- use commercially reasonable efforts to make the online Premium Services available 24 hours a day, 7 days a week, except for:
- planned downtime (of which Progressive Plans shall give at least 24 hours electronic notice and which Progressive Plans shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time);
- emergency updates; and
- any unavailability caused by circumstances beyond Progressive Plans’ reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Progressive Plans employees), Internet service provider failure or delay, hosting service failure, non-Progressive Plans application failure, or denial of service attack.
- Customer Responsibilities. Customer shall abide by all applicable laws, treaties, ordinances, and regulations regarding use of the Premium Services. Customer shall be responsible and liable for the acts and omissions of all Users in connection with this Agreement, as well as any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Customer’s account or providing or receiving Customer Data or other information through the Service. Customer acknowledges that Customer’s access information, including User IDs and passwords of its Users, is Customer’s “key” to the Premium Service; accordingly, Customer is responsible for maintaining the confidentiality of such access information. Customer is responsible for the accuracy, quality, and legality of the Content and the means by which Customer acquired it. Customer’s responsibilities regarding Registration and Protection of Account Information, User Restrictions and Content are set forth in the End User License Agreement, explicitly incorporated by reference.
- Load Testing and Use of Robots. Without the prior, written consent of Progressive Plans’ security officer, Customers may not:
- conduct security, integrity, penetration, vulnerability, or similar testing on the Progressive Plans Subscription Services,
- use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the Progressive Plans Technology, or
- attempt to access the data of another Progressive Plans customer (whether or not for test purposes).
- Professional Services. Progressive Plans will perform the work in the Order Form and use commercially reasonable efforts to meet the schedules. Customer will provide Progressive Plans with reasonable support and access to its facilities, systems, materials, and personnel needed to perform the Professional Services and will be responsible for any negative impact to the services schedule to the extent Customer fails to do so.
- INTELLECTUAL PROPERTY OWNERSHIP. As between Progressive Plans and Customer, Customer owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Content and any work based on or derived from the Content. As between Progressive Plans and Customer, Progressive Plans (or its licensors and suppliers) owns and will continue to own all right, title, and interest, including all related Intellectual Property Rights, in and to the Premium Service and the Progressive Plans Technology. Notwithstanding any term of the Agreement, Customer may not assert any direct claim against Progressive Plans, nor any indirect claim against any Progressive Plans customer, licensee, or subscriber arising from or relating to any technology, method, configuration, know-how, or other similar development for the integration of the Progressive Plans’ API to any third-party products or services. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the Progressive Plans’ name, the Progressive Plans’ logo, and the product names associated with the Service are trademarks of Progressive Plans or third parties, and no license to such marks is granted herein. Progressive Plans is free to use any ideas, concepts, know-how, or techniques contained in Customer communications for any purpose including, but not limited to, developing and marketing products using such information.
- BILLING AND PAYMENT.
- Subscriptions. Unless otherwise provided in the applicable Order Form
- Premium Services and Content are purchased as subscriptions,
- additional User subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and
- any added subscriptions shall terminate on the same date as the underlying subscriptions.
- Usage Limits. Premium Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms corresponding to product levels. Unless otherwise specified,
- a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users,
- a product level in an Order Form refers to the amount of Content that may be loaded by a User,
- a User’s password may not be shared with any other individual, and
- a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Premium Service or Content. If Customer or User exceeds a contractual usage limit, Progressive Plans may impair Customer’s access to the Premium Services and Content until Customer conforms its use to the contractual limit.
- Fees. Customer shall pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,
- fees are based on number of User subscriptions and product level,
- payment obligations are non-cancelable, and fees paid are non-refundable, and
- quantities purchased cannot be decreased during the relevant subscription term.
- Invoicing and Payment. Customer must provide Progressive Plans with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Progressive Plans. If Customer provides credit card information to Progressive Plans, Customer authorizes Progressive Plans to charge such credit card for all purchased Premium Services listed in the Order Form for subscription term and any renewal subscription term(s) as set forth in Section 5.2 (“Term of Purchased Subscriptions”). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.
- Taxes. Progressive Plans subscription fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable against Customer and its Users by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Progressive Plans has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4, Progressive Plans shall invoice Customer and Customer will pay that amount unless Customer provides Progressive Plans with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Progressive Plans regarding future functionality or features.
- Subscriptions. Unless otherwise provided in the applicable Order Form
- TERM; TERMINATION.
- Term of Agreement. This Agreement commences on the date Customer first accepts it and, unless otherwise terminated, continues until all subscriptions hereunder have expired or have been terminated.
- Term of Purchased Subscriptions. The term of each subscription is specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one-year (whichever is shorter), at Progressive Plans’ then current rates as published on www.progressiveplans.com.
- Termination. Either party may terminate this Agreement with or without cause at any time.
- Customer’s Data Portability and Deletion. Progressive Plans shall make the Customer’s Content available to Customer for export or download for up to 9 months after termination or after a free trial ends. After 9 months of account inactivity or 9 months after a free trial ends (without a subscription, Progressive Plans does not have an obligation to maintain or provide Customer’s Data, and may thereafter delete or destroy all copies of Customer’s Data in Progressive Plans systems or otherwise in Progressive Plans possession or control as provided in the Documentation, unless legally prohibited.
- Effect of Termination; Survival. Upon expiration or termination of this Agreement:
- all subscriptions and licenses granted by Progressive Plans under this Agreement and Progressive Plans’ obligation to provide (and Customer’s right to access and use) the Service and Progressive Plans Technology, must terminate;
- Customer Data will be returned or deleted pursuant to Section 5.5; and (d) Sections 3 and 6 through 10 will survive.
- REPRESENTATIONS AND WARRANTIES.
- By Progressive Plans.
- Conformity with Specifications. Progressive Plans represents and warrants to Customer that the applicable Premium Service platform, when used in accordance with the instructions in the Documentation and this Agreement, will conform to the specifications in the applicable Documentation. Progressive Plans’ entire liability and Customer’s sole and exclusive remedy for such breach will be, at Progressive Plans’s election, to either:
- By Progressive Plans.
- re-perform, modify, or replace the Service so that it so conforms to such warranty; or
(ii) provide a refund of the fees paid for the affected Service, and solely as to the refunded Service, this Agreement, and Customer’s right to access such Service will immediately terminate. Progressive Plans makes no warranty with respect to, errors caused by or relating to:
- use of the Service in a manner inconsistent with the Documentation or this Agreement; or
- third party hardware or software misuse, modification, or malfunction.
- Noninfringement. Progressive Plans represents and warrants to Customer that the Service, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s Intellectual Property Rights. As Progressive Plans’ sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty, Progressive Plans will indemnify Customer as set forth in Section 7.1 (“Indemnification”) – by Progressive Plans’.
- By Customer. Customer represents and warrants to Progressive Plans that
- Customer has the right to provide or submit the Content through the Premium Services, and
- the Content does not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party. As Customer’s sole and exclusive obligation and Progressive Plans’ sole and exclusive remedy for breach of the foregoing warranty, Customer shall indemnify Progressive Plans as set forth in Section 6.
- WARRANTY DISCLAIMERS. Except as warranted herein, all representations and warranties, express, implied, or statutory, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement of third-party rights, are disclaimed. Progressive Plans’ Premium Services may be subject to, and Progressive Plans is not responsible for, limitations, risks, and other problems inherent in electronic communications, and Progressive Plans does not warrant that use of the premium services is risk-free. Progressive Plans does not provide representations, warranties, or assurances against interception or access and progressive plans is not responsible for any unauthorized acts resulting in loss of or damage to customer data or other property in connection with customer’s use of the premium services. Progressive Plans may, in performing its obligations pursuant to this agreement, be dependent upon or use data, material, and other information furnished by customer without any independent investigation or verification thereof, and Progressive Plans may assume that such information is accurate, complete, and legally sufficient.
- By Progressive Plans. Progressive Plans shall defend Customer from and against any and all third-party lawsuits to the extent:
- alleging that the Premium Service infringes or misappropriates any Intellectual Property Rights;
- arising out of or relating to a breach of this Agreement by Progressive Plans, and shall indemnify and hold Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. Progressive Plans shall have no indemnification obligation for infringement or misappropriation claims to the extent arising from:
- By Progressive Plans. Progressive Plans shall defend Customer from and against any and all third-party lawsuits to the extent:
- Customer’s or any User’s use of the Premium Services other than as permitted under this Agreement;
- the combination of the Service with any Customer Data or any Customer or third-party products, services, hardware, data, content, or business process(s); or
- from the modification of the Service or any Progressive Plans Technology by any party other than Progressive Plans or Progressive Plans’ agents. If the Premium Services provided under this Agreement become the subject of any claim, suit, or proceeding for infringement of any intellectual property rights, or if it is held or otherwise determined to infringe any intellectual property rights, Progressive Plans must
- secure for Customer the right to continue using the Premium Services; or
- replace or modify the Premium Services to make it non-infringing without degrading its performance or utility; or
- if Progressive Plans using its best efforts is unable to accomplish item (1) or (2) above, either Customer or Progressive Plans may terminate this Agreement and Progressive Plans may refund to Customer the pro-rata portion of the unused subscription Fees related to the infringing intellectual property. The foregoing is Progressive Plans’ sole and exclusive obligation for the third-party claims described in this section 7.1.
- By Customer. Customer shall indemnify and defend Progressive Plans from and against any and all third-party lawsuits to the extent:
- alleging that the Content or its duplication, enhancement, publication, or use infringes or misappropriates any Intellectual Property Rights, breaches any agreement between Customer and a third-party, or violates any other common law, statutory right, or published policy, such as privacy;
- arising out of or relating to a breach of this Agreement by Customer or any Users; or
- it arises from a claim of violation by Customer or Users of any law, ordinance or regulation or contractual obligation to a third-party, and Customer will indemnify and hold Progressive Plans harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. Customer acknowledges that its obligation to indemnify and hold Progressive Plans harmless extends to all users of Customer’s Premium Services accounts, not just its own employees and agents.
- Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party:
- promptly giving written notice of the claim to the indemnifying party;
- giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim);
- providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and
- not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
- LIMITATION OF LIABILITY. Except for a breach of section 3 (“Intellectual Property”) or section 9 (“Confidentiality”), each party’s indemnification obligations, or for direct damages to the extent arising out of a party’s intentional misconduct, or fraud, neither Progressive Plans’ nor its suppliers’ or licensors’, nor customer’s aggregate liability will exceed the sums actually paid by or due from customer under the applicable order forms. Except for a breach of section 3 (“Intellectual property”) or section 9 (“Confidentiality”) or each party’s indemnification obligations, neither Progressive Plans nor its suppliers or licensors, nor customer, are liable for any indirect, punitive, special, exemplary, incidental, consequential, or similar damages (including loss of data, revenue, profits, or use) arising out of or relating to this agreement, including the use or inability to use the service, any interruption, inaccuracy or error in the content, even if Progressive Plans has been previously advised of the possibility of such damages.
- CONFIDENTIALITY. Progressive Plans may use Customer’s Confidential Information to perform Progressive Plans’ obligations or exercise its rights hereunder. Progressive Plans may not knowingly disclose, or permit to be disclosed, Customer’s Confidential Information to any third party without Customer’s prior written consent, except that Progressive Plans may disclose Customer’s Confidential Information to Progressive Plans’ employees, officers, directors, consultants, contractors, agents or advisors (“Representatives”) who have a need to know for purposes of the Progressive Plans’ exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Progressive Plans acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement. Progressive Plans agrees to exercise due care in protecting Customer’s Confidential Information from unauthorized use and disclosure, and shall not use less than a reasonable degree of care. The foregoing does not apply to any information that: (i) was or becomes generally known by the public through no fault of Progressive Plans; (ii) was properly known to Progressive Plans, without restriction, prior to disclosure by Customer; (iii) was properly, and with authority, disclosed by a third party to Progressive Plans, without restriction ; (iv) Progressive Plans independently develops without use of Customer’s Confidential Information; or (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement. If the Progressive Plans or any of its Representatives is required pursuant to a judicial or legislative order or proceeding to disclose any Confidential Information of Customer, then, to the extent permitted by applicable law, the Progressive Plans shall promptly, and prior to such disclosure, notify the Customer of such requirement so that the Customer can see a protective order or other remedy, notice of the intended disclosure and an opportunity to respond or object thereto. No such compelled disclosure by the Progressive Plans may otherwise affect the Progressive Plans’ obligations hereunder with respect to the Confidential Information so disclosed.
- Publicity. During any applicable Service Term, Customer grants Progressive Plans the right to identify Customer as a customer of the applicable Premium Services, including using the Customer’s logo, solely in marketing materials and on Progressive Plans’ Site. Neither party shall issue any press release regarding this Agreement without the prior written consent of the other party.
- Notices. All notices, requests, demands, waivers, consents, and other communications hereunder must be in writing and must be served by personal service, certified or registered mail or confirmed electronic or facsimile transmission at the address of the receiving party set forth below (or at such different address as may be designated by such party by written notice to the other party) and shall be deemed complete upon receipt.
If to Progressive Plans
Progressive Plans, Inc.
2701 N Thanksgiving Way Unit 100
Lehi, UT 84043
- Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to: (a) an entity that acquires all or substantially all of the assets of the assigning party; or (b) any subsidiary or Affiliate of the assigning party or successor in a merger or acquisition (whether by operation of law or otherwise) involving the assigning party’; provided, further that for any permitted assignment by a party, the assigning party shall provide the non-assigning party with written notice of such assignment and that the party receiving the assignment assumes all of the performance obligations and liabilities of the assigning party. Any attempted assignment in violation of the foregoing is null and void.
- Governing Law; Venue. This Agreement will be governed by Utah law, without regard to conflicts of law provisions. The U.N. Convention of Contracts for the International Sale of Goods or UCITA do not apply. Any dispute arising out of or relating to this Agreement shall be brought in Utah County, Utah. Each party hereby consents to the exclusive jurisdiction of such courts.
- Remedies. Except as provided in Sections 6 and 7, the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Premium Service and Progressive Plans Technology contain Progressive Plans’ valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto constitutes harm to Progressive Plans for which monetary damages would be inadequate, and that seeking injunctive relief is an appropriate remedy.
- Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
- U.S. Government End Users. If Customer is a U.S. government agency, the following applies. Progressive Plans provides the Service, including related software and technology, in accordance with the following: government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Progressive Plans to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement.
- Export Compliance. Customer acknowledges that the Premium Services may be subject to U.S. and foreign export and import restrictions. Customer may not and may not allow any export or re-export of any part of the Premium Services, or any direct product thereof:
- into (or to a national or resident of) any embargoed or terrorist- supporting country;
- to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals;
- to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or
- otherwise in violation of any export or import restrictions, laws or regulations. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
The Premium Service is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
- Waiver; Amendment; Severability. A party’s failure to enforce any provision in this Agreement does not constitute a waiver unless in writing. No amendment hereof is effective unless in writing and signed by both parties. If any provision of this Agreement is unenforceable, it may be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions continue in full force and effect. Neither party is liable for failure to perform due to causes beyond its reasonable control.
- Purchase Orders. This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice, or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of the Agreement shall be binding on Progressive Plans unless in writing and signed by a duly authorized representative of the Progressive Plans.
- Local Use Decisions. Progressive Plans will not provide Customer with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which Customer uses the Application (“Laws”). The parties acknowledge and agree that not all features, functions and capabilities of the Application may be used in all jurisdictions and Customer recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain jurisdictions consents may need to be obtained from individuals submitting data via the Application as to the intended purpose, storage, distribution, access and use of the data submitted (“Local Use Decisions”). Customer is responsible for Local Use Decisions and Progressive Plans disclaims all liability for Local Use Decisions.
- Entire Agreement. This Agreement forms the entire agreement between Customer and Progressive Plans regarding the subject matter hereof. It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter. Any preprinted terms on any Customer purchase order have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes. “Including” means “including but not limited to.”
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Beta Testing Agreement
This Beta Testing Agreement (“Agreement”) is between Progressive Plans, Inc. (“ProPlans”) and Beta Customer.
Scope of Agreement. ProPlans grants Beta Customer certain rights for the purpose of testing and providing input and other feedback to ProPlans about ProPlans’ proprietary software applications, application platform interfaces, services, features and functionalities, and other proprietary information and processes. Beta Customer agrees that this Agreement covers all beta products made available to Beta Customer, including, without limitation, any products specifically identified in “Beta” or any similar stage of development. ProPlans may make available to or withhold from Beta Customer beta products during the Term. Beta Customer is not required to utilize or enable any beta products. However, if Beta Customer elects to do so, then Beta Customer’s use of and access to any beta products is to this Agreement.
Disclaimer of Warranties. The beta product(s) are provided “as is”. Proplans makes no representations or warranties, express or implied, regarding the beta product(s), including any representation that the services thereunder will be uninterrupted or error-free. To the fullest extent permitted under applicable law, ProPlans disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose. Beta Customer acknowledges and agrees that all beta product(s) are prerelease, are expected to contain defects that may be material, and are not expected to operate at the level of performance or compatibility of a final, generally available product offering. Beta product(s) may be withdrawn at any time. Beta Customer should safeguard all data and not to rely in any way on the correct functioning or performance of any beta product. In no event shall ProPlans or its affiliates be liable for any indirect, special, consequential and/or incidental loss, exemplary or other damages related to this Agreement and/or whether direct or indirect: (i) loss of data, (ii) loss of income, (iii) loss of opportunity, (iv) lost profits, and (v) costs of recovery or any other damages, however caused and based on any theory of liability, and whether or not for breach of contract, tort (including negligence), violation of statute, or otherwise, and whether or not ProPlans has been advised of the possibility of such damages. To the extent permitted by applicable law, ProPlans’ maximum liability hereunder is limited to $100.00.
Payment; Fees. ProPlans may charge fees for use and access to the beta products or may provide the beta products for no charge. ProPlans reserves the right to start charging or revise fee amounts at any time, at its sole discretion. Beta Customer agrees to pay any fees, if any, that ProPlans charges.
Limited Use Rights. ProPlans grants to Beta Customer a limited, non-transferable, non-exclusive, revocable right to access and use the beta product(s) to test functionality and provide feedback. ProPlans makes the beta product(s) available for access and use over the Internet or a mobile device. ProPlans does not have to deliver or make available any copies of computer programs or code from the beta product(s) to Beta Customer. ProPlans may revoke access and use of the beta products at any time. ProPlans may monitor or measure use of the beta product(s). ProPlans may offer support services. Beta Customer shall not, and shall not permit its Users to, share beta product access rights with any other individual or entity.
Intellectual Property. Beta Customer acknowledges that this Agreement does not transfer any right, title, or interest in any intellectual property right of ProPlans. ProPlans maintains all rights, title, and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”). The limited rights granted to Beta Customer to access and use the Beta Product(s) under this Agreement do not convey any additional rights in the beta product(s), or in or to any Intellectual Property Rights. All rights, title, and interest in and to the Beta Product(s) and all hardware, software, and other components of or used to provide the beta product(s), including all related Intellectual Property Rights, remain with and belong exclusively to ProPlans. Beta Customer may not rent, lease, distribute, or resell the beta product(s), or use the beta product(s) as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality, or proprietary legends or other notices or markings that are on or in the beta product(s).
Feedback. Beta Customer agrees to provide suggestions, enhancement requests, and recommendations regarding the Beta Product(s). Beta Customer agrees to make time to discuss the beta product(s). ProPlans may without restriction or fee use, modify, and incorporate this feedback into ProPlans’ products and services without any restriction and without any payment.
Term of Agreement and Renewal. This Agreement shall commence upon Beta Customer selecting and agreeing to this Agreement and shall be for one year. Either party may terminate this Agreement at any time, for any or no reason, and at either party’s convenience by providing written notice to the other. Upon termination of this Agreement, Beta Customer shall notify its Users that their access to the beta product(s) has terminated. ProPlans may use or discard any content, data, or other information that Beta Customer or its Users post or upload into ProPlans’ products and services. Beta Customer’s obligations under sections 2, 3, 4, 5, 6, 7, 8, and 9 survive termination of this Agreement.
Confidential Information. Beta Customer acknowledges and agrees that ProPlans may disclose certain confidential, proprietary, or trade secret information related to the beta products or ProPlans (“Confidential Information”). ProPlans’ Confidential Information includes, without limitation, the features and functionality of the beta product(s), and any know how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, business plans or reports made available to Beta Customer. Beta Customer agrees that it will not, without the express prior written consent of ProPlans, disclose any Confidential Information or any part thereof to any third party, except to the extent that the Confidential Information (a) is or becomes generally available to the public through any means other than as a result of any act or omission by Beta Customer; (b) is rightfully received by Beta Customer from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (c) is independently developed by Beta Customer without any reliance on any Confidential Information. At the termination of this Agreement or at any time by request of ProPlans, Beta Customer shall return all Confidential Information in its possession to ProPlans and further agrees that it will not duplicate, translate, modify, copy, print, disassemble, decompile or otherwise tamper with the beta product(s) or any Confidential Information.
Indemnity. Beta Customer agrees to indemnify, defend, and hold ProPlans, its officers, directors and employees harmless from any losses and damages (including attorneys’ fees) that result from any third-party claims related to Beta Customer’s (or its Users) access, use, or misuse of the beta product(s), or any act or omission by Beta Customer or its Users in violation of this Agreement.
Governing Law. Utah law governs this Agreement. ProPlans may seek to recover its legal fees and costs for any breach of this Agreement. Beta Customer acknowledges and agrees that any breach of confidentiality obligations in this Agreement, or any unauthorized use of the services or ProPlans’ intellectual property by the other, may cause irreparable harm. In no event may this agreement be governed by the United Nations Convention on contracts for the international sale of goods.
Relationship. This Agreement does not create a partnership, agency relationship, or joint venture between the parties.
Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention and the remaining provisions will not be affected.
Entire Agreement. This Agreement encompasses the entire agreement between Beta Customer and ProPlans and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by duly executed written instrument.