Proteus Business Solutions Inc. d/b/a PROTEUS420
These Terms of Service ("Terms of Service") constitute a legally binding agreement between you and Proteus Business Solutions Inc. and its subsidiaries, representatives, affiliates, officers and directors (collectively, "PROTEUS"), governing your use of PROTEUS's website and services and any related content or services (collectively, the "Services").
1. Terms Governing Use of Proteus Services; Agreement to All Condition Precedent to Use
In addition to these Terms of Service, your access to and use of the Services is also governed by PROTEUS's Privacy Policy and any agreements signed or executed on your behalf with PROTEUS.
Taken together with these Terms of Service, these documents constitute the "Terms." The Terms govern your access or use, from within the United States and its territories and possessions, of the Services made available in the United States and its territories and possessions (the "Territory"). If you do not agree to any of these Terms, you may not use the Services and agree to cease any such use immediately.
PROTEUS MAY PROVIDE YOU WITH PROFESSIONAL, ADVISORY, OR SUPPORT SERVICES REGARDING THE SERVICES, BUT ANY SUCH ADVICE OR GUIDANCE WILL NOT CONSTITUTE LEGAL ADVICE OR FIANNCIAL ADVICE AND YOUR USE OF THE SERVICES OR PROTEUS'S GUIDANCE WILL NOT CREATE ANY RELATIONSHIP LEGAL, FIDUCIARY, OR OTHER RELATIONSHIP THAT IS NOT EXPLICITLY STATED AND AGREED TO VIA CONTRACT.
2. Modification.
PROTEUS reserves the right to modify these Terms of Service or its policies relating to the Services at any time, effective by any reasonable means of notice deemed sufficient but generally by posting an updated version PROTEUS's website or otherwise circulating a link to updated terms to customers.
3. Payment
PROTEUS will provide with monthly invoices to the email address supplied by you. You agree and understand that all PROTEUS invoices are due and payable in full within 30 days of the invoice date or the date the invoice is sent to your email (whichever is later). No refunds are available for the Services. On January 1 of each calendar year, the costs of Services shall be increased by 5.5%, regardless of whether the full term of this Agreement has been satisfied.
You agree that all invoices shall be paid in full on or before the 31-day mark of an invoice being sent to you. Failure to pay any invoice in full within 31 days may result in automatic suspension or termination of your account and access to the Services. A ten dollar late fee and two-and-a-half percent finance charge shall be applied to each late invoice, recurring until the invoice is paid in full. You understand that no access will be permitted or restored until any overdue balance is paid in full, plus applicable fees or costs.
4. Term, Renewal, and Termination
Your agreement to use and pay for the Services shall continue from the date your Services began and for a period of one year. If you seek not to renew this Agreement after the initial one-year term, you must provide written notice to PROTEUS at least 90 days prior to the expiration of the Agreement indicating your desire not to renew; otherwise, the agreement shall automatically renew for two years.
In addition to non-renewal, either Party may terminate this Agreement for any reason upon 90-day written notice to the other Party – so long as the 90-day notice is made at least 90 days before the expiration of this Agreement. You acknowledges that you will be responsible for paying any Fees or Costs for Services during the 90-day period, and that if the 90-day period extends into a portion of any given calendar month, you are responsible for paying that month in full. Lastly, PROTEUS may terminate this Agreement for cause based on your breach of the Terms.
5. The Services and Use of Data
You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by PROTEUS. If you decide to use the Services, you may be subject to additional terms and conditions governing the Services and separate fees may apply. You acknowledge that by accessing the Services you may upload or enter certain data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You hereby grant PROTEUS permission to use information about your business and usage experience (or other information you enter) to enable us to provide the Services to you, including updating and storing your data, addressing errors or service interruptions, and to enhance the types of services PROTEUS may provide to you in the future. You also grant PROTEUS permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally to improve services and to compare business practices with other company standards. We may use your data to create, market or promote new PROTEUS offerings to you and others.
We may also use your data if required to (i) comply with applicable law; (ii) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities; (iii) to cooperate with law enforcement concerning conduct or activity that you, PROTEUS, or a third party reasonably and in good faith believes may violate federal, state, or local law; or (iv) to exercise or defend legal claims.
You further agree that you will not disclose or upload via the Software the personal data or information of any individual or entity without obtaining such individual's or entities' prior express consent to the disclosure in accordance with all applicable law.
6. License Grant and Restrictions
Subject to the Terms and conditioned upon on-time payments of invoices, PROTEUS grants you a limited, NONEXCLUSIVE, nontransferable license, during the initial term of the subscription and any applicable renewal term, to access and use the Services, solely for the purpose of utilizing the Service and, if applicable, solely by such number of authorized users for which the applicable fee has been paid by you. Any and all rights granted to you by this license are revocable at PROTEUS's discretion upon any breach of the Terms.
You may not, nor may you permit any third party, directly or indirectly to: (a) modify, make derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the software or Services; (b) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber the software or Services or any portion thereof; (c) use, evaluate or view the Software for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the software or Services; (d) add software to, remove software from, or otherwise alter the software or Services; (e) copy or install other software licensed to you outside the scope of the terms governing your Proteus account; (f) utilize the software of Servies in any way that could damage, disable, overburden, impair or compromise Proteus's systems or security or interfere with other users; (g) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the software or Services; (h) transfer any rights granted to you under these Terms of Service or (i) otherwise use the software and Services except as expressly allowed under these Terms and your written agreements with Proteus.
You further agree that no access will be granted to the Services or our systems by any third-party, system, competitors or other agencies without the express written acceptance of such by Proteus. Violation of this access provision will be cause for IMMEDIATE termination of services and without refund.
7. Accessing the Services
User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). Unless a specific Service provides otherwise: (i) you must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, (ii) you may only possess one Account and (iii) you may not assign or otherwise transfer your Account to any other person or entity. PROTEUS maintains the right to delete or deactivate duplicate accounts. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account credentials at all times.
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. Under some circumstances, as part of the process of creating an account, you will be asked to select a username and password. PROTEUS may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is disrespectful, vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You agree to (a) immediately notify PROTEUS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. PROTEUS will not be liable for any loss or damage arising from your failure to comply with this Section.
You cannot register for or maintain an Account if you have previously been banned from accessing or using the Services. Account registration may require you to submit to PROTEUS certain personal information, such as your name, address, still or live photo, mobile phone number and age, as well as at least one valid payment method that you are authorized to use and is supported by PROTEUS ("Account Information"). You are responsible for providing accurate account information and in certain instances, you may be asked to provide proof of age, identity or other method of identity verification to access or use the Services. You may be denied access to, or use of, the Services if you refuse to provide (or we are unable to verify) proof of age, identity, or other method of identity verification. Additionally, you authorize your wireless carrier to use or disclose information about your account and your wireless device, if available, to PROTEUS or its service providers for the duration of your business relationship, solely to help PROTEUS identify you or your wireless device and to prevent fraud.
PROTEUS may also disable or delete your account if after registration your account is not confirmed (where applicable), your account is unused and remains inactive for an extended period of time, if an invoice is unpaid and late, if we detect someone may have used it without your permission and we are unable to confirm your ownership of the account, or where we are required to do so under applicable law. To the maximum extent permitted by applicable law, PROTEUS and its affiliates assume no liability for such loss of access and use and will have no obligations related to such loss. If you discontinue your use of PROTEUS, or we disable your access to or use of the Services not in error, then you waive all rights and benefits under these Terms but all obligations to PROTEUS survive.
8. Support
PROTEUS will provide reasonable support for the Services. During normal working hours, customers may call support on a first-come first-served basis. After hours support calls are reserved for emergencies and may incur additional costs for use of PROTEUS personnel beyond reasonable troubleshooting or PROTEUS error. Upgrade packages are available for dedicated support should customers require it. PROTEUS DOES NOT PROVIDE SUPPORT FOR ANY HARDWARE OR HARDWARE ISSUES. Any updates or new services will be treated as part of the "Services."
9. Security and Data Use
Customer data is stored by a third party in a secured facility designed to industry standards. While PROTEUS employs additional, voluntary technical/organizational measures designed to secure your information from accidental destruction, loss, modification, unauthorized use or access, or disclosure. PROTEUS does not receive compensation for its data security practices and such is not reflected in the price for the Services paid by customers. This is a voluntary practice by PROTEUS only and may be revoked or revised in its discretion.
PROTEUS IS NOT A CUSTODIAN OR SECURITY ENTITY WITH RESPECT TO CUSTOMER DATA AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGES REALTED TO OR ARISING OUT OF THAT DATA.
Thus, PROTEUS cannot guarantee that third parties will never be able to defeat those measures or use your personal information for improper purposes, nor can PROTEUS guarantee the safety of your data against all occurrences. You provide your personal information or other data at your own risk. You are solely responsible for safeguarding your password and for restricting access to the Services from your devices and computer(s). You must immediately notify us of any unauthorized use of your password or any other breach of security.
You acknowledge that PROTEUS may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on PROTEUS's servers on your behalf. You agree that PROTEUS has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that PROTEUS reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that PROTEUS reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
10. User Conduct and Requirements; Communications; and User Content
In addition to complying with these Terms, you agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes. You may not access or use the Services to cause nuisance, annoyance, inconvenience, damage, or loss to PROTEUS, the Third-Party Provider, or any other party.
Your right to use the Services is personal to you (and your company and its employees, if permitted by PROTEUS). You are entirely responsible and liable for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") uploaded, posted or stored by you using the Services. You shall not use the Services for any illegal purpose in violation of any local, state, federal or international law. You must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate. You agree that you will not use the Services to share, store, or in any way distribute financial data that is not in complete accordance with the law. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials that you upload, post, publish or display or email or otherwise use via the Services .Any users suspected of having financial information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. PROTEUS does not own and is not responsible for the Content or data you submit on the website.
The Services may include a feature that allows you to exchange helpful information with other users of the Services and the public. Internet access is required to use these communication facilities. Please respect and interact with other users as you would in any public arena when using such features. You are responsible for exercising your judgment in evaluating and acting on (or ignoring) other users' communication sessions. PROTEUS does not endorse and is not responsible for the accuracy of the content in these facilities and will not be liable for any damages incurred as a result of any user communication or content. Users may post hypertext links to content hosted and maintained by third parties. PROTEUS has no obligation to monitor these linked sites and is not responsible for them. Your access to any linked sites is at your own risk. Do not reveal information that you do not want to make public.
In the event a dispute arises between two PROTEUS customers, PROTEUS reserves the absolute discretionary right to take corrective action as it deems reasonable. However, PROTEUS has no obligation to do so, and nothing herein shall be construed as creating such an obligation.
You agree that you will not use the Services to upload, post, link to, publish, distribute, reproduce or transmit any of the following:
• Any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute an attack or "flaming" other participants, or would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or foreign law; or
• Any Content or data to impersonate other individuals or falsely represent your identity or qualifications, or that constitutes a breach of any individual's privacy, including posting images about children or any third party without their consent (or a parent's consent in the case of a minor); or
• Any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by PROTEUS) or engage in spamming or flooding; or
• Any information or software which contains a virus, trojan horse, worm or other disruptive or harmful component; or is obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software or other material); or
• Any information, software or other material obtained through the Services which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder.
You agree that PROTEUS has the right but not the obligation to monitor the Services and Content from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect itself or its users. PROTEUS reserves the right to edit, refuse to post, remove or refuse to remove any information or materials, in whole or in part, that, in its sole discretion, is alleged to be unacceptable, undesirable, inappropriate or in violation of the Terms.
11. Third Party Services or Products.
In connection with your use of the Services, you may be made aware of services, products, offers and promotions provided by third parties who are not affiliated with PROTEUS ("Third Party Products"). If you decide to use any Third-Party Products, you do so at your own risk and are responsible for reviewing the terms governing such Third-Party Products. PROTEUS makes no warranty or representation about the quality of any Third Party or Third Party Products. You authorize PROTEUS to use and disclose your contact information, including name and address, for the purpose of making the Third-Party Products you choose available to you. You agree that the third party, and not PROTEUS, is responsible for the performance of the Third-Party Products. The Services may contain or reference links to websites operated by third parties ("Third Party Websites"). PROTEUS is not responsible for the content of, nor any link contained in such Third-Party Websites. The inclusion of any Third-Party Website link in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification, or monitoring by PROTEUS of any data contained in, or services made available through any Third-Party Website. You acknowledge that linked Third Party Websites may contain terms and privacy policies that are different from those of PROTEUS. PROTEUS expressly disclaims any liability for use of such Third-Party Products and Third-Party Websites, and you are agreeing to knowingly and willingly waive any such third-party claims against PROTEUS.
12. Consent to Do Business Electronically
The decision whether to do business electronically is yours. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Services for as long as you remain a subscriber to or use the Services. If you withdraw your consent to receive Communications electronically, we may terminate your use of the Services without refund.
13. No Refund Policy; Billing Errors
PROTEUS does not offer refunds or otherwise cater to buyer's remorse. We are extremely transparent and expect you to understand the agreements you've made and the potential risks.
Clients who purchase month-to-month acknowledge they understand upon sign-up the contract is subject the terms are per month, and cancellations – no matter what time of the month – will NOT operate to pro-rate a partial month or reduce a bill for a customer. Similarly, customers who purchase year-long or longer term services shall not be entitled to any refund should they discontinue the Services sooner.
All charges paid by you are final and non-refundable, unless otherwise determined by PROTEUS in its sole discretion. If you have any requests for cancellations, refunds, or returns, or if you think a correction should be made to any charge you incurred, please visit the "Help" tab in your Account to initiate such requests within 30 days after the charge took place or PROTEUS will have no further responsibility and you waive your right to later dispute the amounts charged.
14. Disclaimers
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PROTEUS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
PROTEUS MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
PROTEUS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY THIRD-PARTY SERVICES OR PRODUCTS, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
PROTEUS DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED OR OBTAINED FROM THIRD-PARTY PROVIDERS IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
PROTEUS DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD-PARTY PROVIDERS. THIRD-PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF PROTEUS. IF A DISPUTE ARISES BETWEEN YOU AND OR ANY OTHER THIRD PARTY, YOU RELEASE PROTEUS FROM LOSSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
PROTEUS DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY THE SERVICES. PROTEUS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
PROTEUS'S USE OF ALGORITHMS IN AN ATTEMPT TO PROVIDE SERVICES OR IMPROVE THE EXPERIENCE OF USERS AND THE SECURITY AND SAFETY OF THE SERVICES DOES NOT CONSTITUTE A GUARANTEE OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED.
15. Limitations of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROTEUS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PROTEUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL PROTEUS'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PROTEUS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at PROTEUS, Inc., 2728 NW Potts Ct. Ste 100, Bend, OR 97703, or by telephone at (866) 838-8244.
16. Data Storage
At PROTEUS, we respect the privacy of our users. For details please see our Privacy Policy. As noted above By using the Service, you consent to our collection and use of personal data as outlined therein.
Data Storage is done in incremental back-ups of 15 minutes and those back-ups are done in a mirrored off-site facility that is owned and operated by our sister hosting company. This data security sheet can be provided upon request however, if you wish to have control over your access to the hard data, you are encouraged to archive your data regularly and frequently and you bear full responsibility for archiving your data and sole liability for any lost or irrecoverable data. PROTEUS does not warrant or otherwise represent that these services comply with any local, state, or federal laws and regulations.
PROTEUS also refers to "CONTENT" and "DATA" as the information that is being stored within our service. Content and Data are the sole ownership of the end user and PROTEUS will not sell, distribute, anonymize, or re-distribute internally or externally without the express written authorization of end user. This authorization can be done via email or fax but must be provided in writing to maximize security and risk. Examples of Content and Data are as such but not limited to: Customer/Patient information, sales data, purchase orders, accounts payable/receivable, etc.
Data Archiving is referred to as RAW data, if you wish to offsite location or internal archive, this will be done without PROTEUS access it will be the RAW and CSV version of the data. We have options to include this externally as well on a hosted dedicated server. However, our SOP's include the data security, back-up and access to include these in your TERMS.
AFTER 12 MONTHS THERE IS NO GUARANTEE THAT WE WILL HAVE OR MAINTAIN ANY DATA BEYOND THAT AGE. Outages will also be expected and up/downtime in line with reasonable industry standard.
15. Intellectual Property Rights
The Services are licensed, not sold, and PROTEUS reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret, and other intellectual property laws. Here, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction PROTEUS and its licencors, where applicable, own all right, title and interest in and to the Services (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services by whomever made. PROTEUS does not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrighted material or other intellectual property.
You acknowledge and agree that the Service may contain content or features ("Service Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by PROTEUS, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by PROTEUS from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of PROTEUS, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by PROTEUS.
The PROTEUS name and logos are trademarks and service marks of PROTEUS (collectively the "PROTEUS Trademarks"). Other PROTEUS, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to PROTEUS. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of PROTEUS Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of PROTEUS Trademarks will inure to our exclusive benefit.
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant PROTEUS and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided by you to PROTEUS are non-confidential and PROTEUS will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that PROTEUS may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of PROTEUS, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
17. Confidentiality
From time to time either Party (the "Disclosing Party") may disclose or make available to the other Party (the "Receiving Party") information about its business affairs, goods, services Intellectual Property, confidential information, trade secrets and other sensitive or proprietary information. Such information, as well as the terms and conditions of this Agreement, whether oral, written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as "confidential," constitute "Confidential Information" under this Agreement. For clarity, the Parties acknowledge and confirm that any information relating to PROTEUS's business or services is confidential information for purposes of this Agreement. Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third party source; provided, that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by on or behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under Applicable Laws; provided, that the Receiving Party shall, to the extent possible, first notify the Disclosing Party in writing of such requirement to disclose and fully cooperate with requests of the Disclosing party to defend, object, or otherwise protect such disclosure.
The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the yy of confidentiality set out herein shall cause the non-breaching Party immediate and irreparable harm and such non-breaching Party shall be entitled to seek immediate injunctive relief restraining the breaching Party from such breach or threatened breach, in addition to any other remedies available to it in law or equity.
18. Indemnification
Mutual Indemnification. Subject in all cases to the limitations of liability expressly set out in this Agreement, each Party (each, an "Indemnifying Party") agrees to indemnify, defend or hold harmless the other Party, its affiliates and each of their respective officers, directors, employees, agents, representatives, successors, and assigns (each, an "Indemnified Party") from any and all Losses arising from or in connection with any of the following: (a) any material inaccuracy of any representation or warranty given by the Indemnifying Party in this Agreement or any agreement, instrument or document executed in connection with this Agreement; and (b) any breach by the Indemnifying Party of any covenant or provision of this Agreement, including any breach by the Indemnifying Party that was caused by or contributed to by any act or omission of its affiliates, and their respective officers, directors, employees, agents, representatives, successors, and assigns.
19. Miscellaneous Provisions
Force Majeure. (a) No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from the following force majeure events (each, a "Force Majeure Event"): (i) acts of God; (ii) flood, fire, earthquake, tsunami, epidemics, pandemics such as the 2019 novel coronavirus pandemic (COVID-19), or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order or law; (v) actions, embargoes or blockades in effect on or after the date of this Agreement; (vi) action by any Governmental Authority; (g) national or regional emergency; (viii) strikes, labor stoppages or slowdowns or other industrial disturbances; (ix) shortage of adequate power or transportation facilities; and (x) other similar events beyond the reasonable control of the Party impacted by the Force Majeure Event (the "Affected Party"); (b) The Affected Party shall give notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue, if reasonably ascertainable (a "Force Majeure Event Notice"). The Affected Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Affected Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause; (c) Promptly after receipt of a Force Majeure Event Notice, the Designated Representatives shall meet (in person or by telephone) to discuss the Force Majeure Event and consider possible amendments to the terms of this Agreement, to give effect to the spirit of this Agreement; (d) In the event that the Parties do not agree on amendments to this Agreement and the Affected Party's failure or delay remains uncured for a period of twenty (20) consecutive days following the Force Majeure Event Notice, either Party may thereafter terminate this Agreement on ten (10) days written notice.
Governing Law: Exclusive Jurisdiction; Venue. This Agreement, as well as any and all claims arising from or relating to this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of New Jersey, without regard to any conflict or choice of law principles. All parties agree that any actions, claims, law suits, choses in action, or any proceeding whatsoever must be brought within the State of New Jersey.
Dispute Resolution. Excepted as provided otherwise by the terms of this Agreement, the Parties agree that the following procedures must be complied with and are conditions precedent to filing any formal action in state or federal court, any arbitration tribunal, or other adjudicative body, and that failure to comply with the below provisions shall constitute an automatic basis for dismissal of any such action, as well as an award of attorney's fees and costs defending or dismissing such actions by the non-breaching party. The only exceptions to these dispute resolution provisions are any claims for breach of confidentiality, intellectual property claims, non-solicitation claims, or non-circumvent claims, which may be brought in any court of competent jurisdiction.
(a) Initial Meeting Between Principals. Within 15 calendar days of a dispute arising out of or relating to this Agreement between the Parties, the Parties agree that they shall set a date for an in-person in San Diego or zoom/google meets meeting (to be held no later than 30 days after the dispute arising) between the principals of each party, without counsel or other parties present (unless each party expressly agrees to such in writing) in order to explore amicable ways of resolving any controversy or curing any breach or other liability or claim related to or arising out of this Agreement. This initial meeting must last for at least one hour.
(b) Mediation. If the above meeting fails to provide a resolution, the Parties further agree that they shall submit the matter to non-binding, facilitative mediation (to be chosen jointly by both Parties) that lasts a full business day no later than 30 days after the initial meeting described above and shall be held in San Diego. Counsel may or may not be present at this mediation, at each Party's discretion. Costs for the mediation will be borne equally by both parties.
(c) Arbitration
(i) Any Dispute that Parties are unable to amicably resolve or settle between themselves through the procedures above, within thirty (30) Business Days (or such longer period as the Parties may mutually agree to in writing) after the mediation session described above, the Parties shall be referred to and finally determined by final and binding arbitration. The arbitration shall be confidential and shall be conducted by one independent and impartial arbitrator selected in accordance with the terms of this Agreement (the "Arbitrator").
(ii) The arbitration shall be administrated by the American Arbitration Association ("AAA") according to its Commercial Arbitration Rules and Mediation Procedures, except as they may be modified herein or by mutual written agreement of the Parties.
(iii) The arbitration shall be held in the State of California, city of San Diego and the arbitration agreement set forth in this Agreement shall be governed by and construed in accordance with the laws of the California.
(iv) Within thirty (30) calendar days of the decision to arbitrate, the Parties agree to jointly select the Arbitrator. The Arbitrator shall be impartial and independent of the Parties and shall be experienced and knowledgeable about the subject matter of the Dispute (generally and not as to the express facts concerning the dispute). If the Parties are unable to agree upon the Arbitrator, either Party may apply to the AAA to select an Arbitrator in accordance with its procedures.
(v) Each Party shall bear its own expenses of preparing for and participating in connection with the arbitration.
(vi) By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other order in aid of the arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies in aid of arbitration, as may be available under the jurisdiction of a court of law, the Arbitrator shall have full authority to grant provisional and final remedies, and to award damages for the failure of the Parties to respect the Arbitrator's orders to that effect. Nothing in this Agreement shall restrict or prohibit a Party from commencing arbitration at any time, including prior the expiry of a Consultation Period, in order to protect its rights under this Agreement or in relation to a dispute or disagreement.
(vii) By singing this Agreement, each Party represents to explicitly having read this Section and understands that each Party is unequivocally waiving their right to a jury trial or the right to bring any claim, dispute, or controversy arising out of or relating to this Agreement in any court whatsoever.
Notices. All notices, requests, consents, and other communications under this Agreement shall be sent by email to the party registered with PROTEUS.
Severability. If any provision of this Agreement is determined to be unenforceable or invalid, the offending provision shall be deemed severed from this Agreement and the determination shall not affect the validity of any other clause or provision of this Agreement, which shall remain in full force and effect, or constitute any cause of action in favor of either Party against the other.
No Waiver. A Party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in writing and signed by the Party granting such waiver.
Injunctive Relief. if either party breaches any obligations with respect to Intellectual Property, Confidential Information, Non-Circumvent, or Non-Solicitation as described herein, the Parties agree that such breach could give rise to irreparable harm to the nonbreaching party for which monetary damages would not be an adequate remedy, and the non-breaching Party will be entitled, notwithstanding the provisions of the dispute resolution section above, and in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction without any requirement to post a bond or other security.
No Third Party Beneficiaries. Each Party intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of, any person or entity other than the Parties to this Agreement.
Assignment. Neither this Agreement nor the rights or obligations hereunder may be assigned by either Party, by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
Authority. Each of the Parties expressly warrants his or her authority to enter into this Agreement and to carry out its obligations as set forth herein, and that this Agreement, when executed, will be a valid and binding obligation enforceable in accordance with its terms.
