Monthly Subscription and Support Agreement
This Checkout Professional Monthly Subscription and Support Agreement (“Agreement”) is made effective on the date of account creation (“Effective Date”) between the Customer and Provaya, LLC. (“Provaya”), a Colorado limited liability company, and (“Customer”), as detailed in new account online form, (individually “Party”, collectively “Parties”).
This Agreement establishes the terms and conditions to which Provaya and Customer agrees to subscribe for use of Checkout Professional, a product of Provaya designed as a point of sale solution for retail customers. Customer’s right to use Checkout Professional is expressly subject to acceptance of the terms of this Agreement and may be subject to certain terms of separate agreements between Provaya and third parties including, but not limited to, the terms of any applicable merchant service provider agreement(s). This Agreement and its Exhibits apply to, as appropriate, the (i) Single User Trial Period; (ii) non-trial Single User subscription; and (iii) Multi-User subscription of Checkout Professional, as well as other customized versions of Checkout Professional, if appropriate (individual “Version”, collectively “Versions”). The attached Exhibit A sets out the current fee structure, which may be modified from time to time as described in this Agreement.
A. Single User No Cost Trial Period
Customer can assess Checkout Professional as a Single User at no cost for a period of up to thirty (30) days. The free trial will begin at the time of account creation. At any time before the end of the thirty (30) day Single User Trial, Customer can cancel its Checkout Professional account and will not be charged. If Customer does not cancel on or before the end of the thirty (30) day Trial, Customer will be charged the Single User Monthly fee on the calendar month anniversary of the Effective Date of this Agreement each month until termination, which charge shall automatically post to Customer’s credit card account. If Customer desires Multi-User access to Checkout Professional at any time during the thirty (30) day trial, Customer can elect Multi-User status on the Checkout Professional website. Said election will terminate the free trial and will create a Multi-User account for Customer which account will be billed the regular Multi-User monthly fee on that date and on the same day each calendar month thereafter.
B. Limitations on Single User Trial
Customer hereby acknowledges that the Checkout Professional Trial Period is only for Single User status. There is no Multi-User free trial for Checkout Professional. Furthermore, the use of Checkout Professional during the Trial Period will not entitle customer to keep and use the data entered into Checkout Professional during the Trial Period, unless Customer subsequently purchases a subscription for either the Single or Multi-user versions of Checkout Professional. IN ADDITION TO THE OTHER DISCLAIMERS HEREIN, YOUR SOLE REMEDY FOR ANY DISSATISFACTION WITH OR FAILURE IN PERFORMANCE OF THE SOFTWARE SHALL BE TO TERMINATE THE TRIAL AND CEASE USE OF THE SOFTWARE.
C. Regular Subscription
Customer may subscribe for Single-User or Multi-User access to Checkout Professional at any time. All subscriptions allow Customer to access and use the full functionality of the subscribed Version for both point of sale and back office applications. In addition, any subscription provides a limited,
revocable, non-exclusive license to use the subscribed Version each month with all inclusions described therein, so long as the fees described in the same Exhibit A are timely paid by Customer by charge to Customer’s credit card. Failure to make timely payment as a result of incorrect or outdated credit card information will result in a notice to Customer stating that the fee is due. If Customer’s account is not updated with correct credit card information within five (5) days thereafter, Customer’s Checkout Professional account will be shut down, and Customer will no longer have access to the data therein. Customer may terminate this Agreement and receive its all of its data from Checkout Professional as described below.
3. CUSTOMER DATA SECURITY
A. Dedicated Server Space
Provaya uses partitioned space for each Customer on an outside vendor’s web hosting server to assure the industry standard level of security for Customer data. Microsoft Azure, Provaya’s web hosting provider, is SSAE 16 / ISAE 3402 Type II SOC 1 Certified. Provaya’s agreement with Rackspace guarantees 100% network uptime, outside of scheduled maintenance and provides Customer with a secondary off-site backup of all data, which is provided consistently and incrementally.
Provaya uses 128-bit level encryption, and secure, individualized directories, which means only Customer has access Customer’s information. The ____________ ISO 27001 certified Information Security Management System (ISMS) certifies the management of information security. Furthermore, Provaya’s server-farm host is a PCI DSS Level 1 facility.
Provaya will notify Customer promptly if Provaya becomes aware of any data or security breach involving Customer’s data.
4. PROPERTY OF PROVAYA – LIMITATIONS OF LICENSE
A subscription for access to Checkout Professional provides a right to use Checkout Professional for a period of time but does not convey ownership in Checkout Professional or in any of its code, subparts or functionality. Furthermore, Checkout Professional contains Provaya trade secrets, and Customer hereby acknowledges and agrees that it shall not reverse engineer, disassemble, or otherwise reduce Checkout Professional to human-perceivable form or disable any functionality which limits the use of Checkout Professional. You may not modify, adapt, translate, rent or sublicense (including offering Checkout Professional to third parties on an applications service provider or time-sharing basis), assign, loan, resell for profit, or provide your log-in credentials, or create derivative works based upon Checkout Professional or any part thereof.
This month to month Agreement may be terminated by Provaya for an Uncured Default, as described below, or upon notice from Customer, which shall be effective as described herein. An Uncured Default is defined as a failure of Customer to keep its credit card information current in the system such that Customer can be charged its regular monthly fee. Provaya may terminate this agreement upon five (5) days’ notice if the credit card information is not updated such that the default can be cured by making the monthly fee payment. Customer may terminate this Agreement by logging in and canceling the subscription via the customer portal at www.Provaya.com. Monthly contract fees will not be prorated, final termination of this contract occurs at end of paid services when cancelation is Customer initiated. If the Agreement is terminated pursuant to Customer notice, Customer data can be extracted from Checkout Professional by the export or reporting tools available within. In addition to the previous termination provisions, if Provaya, in its sole discretion, determines that Checkout Professional is being
used to conduct illegal activities of any kind, Provaya has the right to terminate this Agreement immediately and without refund for any unused days.
6. NO WARRANTIES
CHECKOUT PROFESSIONAL IS PROVIDED “AS-IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVAYA DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS SOFTWARE, RELATED MATERIALS AND ANY SUCH SERVICES OR CONTENT, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR SECURITY, THEIR MERCHANTABILITY, OR THEIR NONINFRINGEMENT. PROVAYA DOES NOT WARRANT THAT CHECKOUT PROFESSIONAL WILL REMAIN FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS. IN THE EVENT THAT STATE LAW REQUIRING AN IMPLIED WARRANTY IS APPLIED TO THIS AGREEMENT DESPITE THE REQUIREMENT THAT COLORADO LAW GOVERNS, WHICH IS SET FORTH BELOW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OF THE SOFTWARE.
7. LIMITATION OF LIABILITY AND DAMAGES
THE LIABILITY OF PROVAYA, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SUCCESSORS, ASSIGNS, LICENSEES, AND REPRESENTATIVES IS HEREBY EXPRESSLY LIMITED TO THE AMOUNT PAID BY THE CUSTOMER FOR ITS SUBSCRIPTION. MOREOVER, THE SAME ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO: DAMAGES FOR LOSS OF DATA, LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. THE LIMITATIONS ON DAMAGES IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF WHETHER PROVAYA OR ANY OF THE ABOVE REPRESENTATIVES OF PROVAYA HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PROVAYA AND ‘CUSTOMER’. PROVAYA WOULD NOT BE ABLE TO HAVE PROVIDED THIS SOFTWARE WITHOUT SUCH LIMITATIONS.
8. INTELLECTUAL PROPERTY CLAIMS – INDEMNIFICATION BY PROVAYA
Provaya shall indemnify, defend and hold Customer harmless against any claims, demands, causes of action or suits of whatever nature for losses, liability, damages, fines, penalties, awards, judgments, reasonable attorneys’ fees, costs, or expenses caused by or resulting from any third-party claim of infringement of any patent, trademark, copyright, trade secret or other intellectual property right utilized in connection with Checkout Professional. Provaya will pay all damages and costs, provided that Customer: (i) gives written notice of the claim to Provaya promptly; (ii) gives Provaya control of the defense and settlement of the claim; (iii) provides to Provaya all reasonable information and assistance; and (iv) has not settled such claim. If Checkout Professional, or any portion thereof, are found to infringe, Provaya will: (i) obtain for Customer the right to use the infringing portion of Checkout Professional; (ii) replace or modify Checkout Professional to be non-infringing; or, if neither of these alternatives is reasonably available, (iii) remove infringing portions from Checkout Professional and refund a portion of the price of Checkout Professional pro-rated at Provaya’s reasonable discretion both for the amount of Checkout Professional found to be infringing relative to the entirety of Checkout Professional and pro-rated such that the refund reflects only time remaining under the contract, if any, rather than the entire purchase price. Provaya has no obligation for any claim to the extent that it results from: (i) use of the licensed product(s) in combination with any equipment, software or data not provided by Provaya; (ii) Provaya’s compliance with designs or specifications provided or requested by Customer or Customer’s agents; (iii) modification of the licensed products
other than at Provaya’s direction; or (iv) use of an allegedly infringing version of the Software, if the alleged infringement could be avoided by the use of a different version made available to Customer at no cost to Customer and Customer was notified to upgrade to such version. This section states Provaya’s entire liability and your exclusive remedies for all claims of infringement of any third-party intellectual property right, and all other claims and remedies are excluded.
9. INDEMNIFICATION BY CUSTOMER
Customer shall indemnify, hold harmless and defend Provaya against any claims, demands, causes of action or suits of whatever nature for losses, liability, damages, fines, penalties, awards, judgments, reasonable attorneys’ fees, costs, or expenses caused by, related to or resulting from Customer’s use of Checkout Professional. Customer will pay all damages and costs, provided that Provaya: (i) gives Customer written notice of the claim promptly; (ii) gives Customer control of the defense and settlement of the claim; (iii) provides to Customer all reasonable information and assistance; and (iv) has not settled such claim.
10. LOCAL REGULATIONS
Customer agrees to comply strictly with all local laws and regulations related directly or indirectly its use of Checkout Professional, and Customer acknowledge that it has the responsibility to obtain any and all licenses, pay any and all taxes and fees, and take any and all such steps as may be required by local law or regulation in use of the Checkout Professional point of sale system.
11. GOVERNING LAW
This Agreement is written pursuant to and shall be interpreted under the laws of the State of Colorado. No choice of law rules of any jurisdiction will apply. The courts of Broomfield County, State of Colorado, shall have exclusive jurisdiction over all disputes regarding this Agreement, the performance of the parties, the licenses granted hereunder and the relationship between the parties, unless such courts should not have subject matter jurisdiction, in which case the federal courts sitting in Denver, Colorado shall have exclusive jurisdiction. The parties hereby submit to the personal jurisdiction of such courts.
If any provision of this Agreement or any portion of a provision is held to be unenforceable, said provision shall be stricken from the Agreement and the remainder of the Agreement shall remain in full force and effect with the provision or portion of the provision omitted.
13. ENTIRE AGREEMENT
This Agreement, together with any executed Exhibits and any Privacy Policies and Disclosures made part Checkout Professional as it is used by Customer, is the entire agreement between the Parties relating to Customer’s subscription for Checkout Professional. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the Parties relating to its subject matter. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
Nothing in this Agreement creates a partnership, franchise, joint venture, or agency relationship between the Parties. From time to time Customer may be asked or given the opportunity to provide input to Provaya regarding product or service design or quality. Customer’s participation in such
feedback does not constitute any development activity, and Customer shall receive neither rights nor title to any Provaya product or service, or any part thereof, by virtue of such activity.
15. FORCE MAJEURE
Provaya shall not be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement by reason of any Act of God, fire, natural disaster, accident, riot, act of government, strike or labor dispute, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause beyond the reasonable control of Provaya.
REVIEWED, ACKNOWLEDGED AND AGREED TO BY ‘CUSTOMER’
Term/Subscription Price List
Term. This Agreement shall be in effect from the ‘Effective Date’ until terminated as described in paragraph 5 of the Agreement and shall automatically renew on a month to month basis until terminated.
Subscription Packages Fee/Each
______ Site License – includes one register license * $120/mo.
______ Each additional register license $40/mo.
1. ADDITIONAL TERMS OF SUBSCRIPTION
a. Fee Changes.
From time to time Provaya may adjust its monthly fee amount of Single User and Multi-User accounts. Prior to any adjustment, Provaya will provide sixty (60) days’ notice. Customer can then elect whether to agree to the fee change or to terminate the Agreement. If Customer does not terminate the Agreement, Customer will have deemed to have agreed to the new fee amount, and the Agreement of the Exhibit will be considered as amended accordingly.
Provaya is a Microsoft Windows based application and requires a tablet, laptop, or desktop computer running the current version of the Microsoft Windows Operating System. Provaya is a future focused company and will strive to stay current with all Windows current OS releases. In turn, as Microsoft decommissions operating systems for support, Provaya will as well. This ensures a secure operating environment.
2. SUPPORT FOR YOUR SUBSCRIPTION
a. Provaya’s Commitment
Provaya is committed to providing an easy to use, fully documented product that simply works and should require minimum support to get your business operating; however, if en lieu of reading the provided materials, you prefer dedicated phone assistance or to cover your after-hours support needs, we offer a technical support pack.
Certain situations never require a Support Pack, those are:
i. one hour of phone support within 30 days of purchase;
ii. A confirmed, reproducible coding error in Checkout Professional; and
iii. Inadequate information in the documentation, as judged in Provaya’s reasonable discretion.
b. Regular Support Hours
Provaya staff will be available via email or live chat Monday – Friday 9am – 5pm CST.
Provaya will make every effort to process requests within (60) sixty minutes of Customer contact, on occasion doing so will not be possible because of Provaya’s client commitments. In those situations, Provaya will return Customer’s inquiry as soon as possible thereafter.
3. SUPPORT PACK
With the purchase of a Support Pack, Customer shall be entitled to phone, email and live chat during Regular Support Hours for non-emergent matters and at any time for Critical Path Matters. A Critical Path Matter is hereby defined as a failure in the software resulting Customer’s inability to take payment, generate reports necessary to close a day’s activity or other matters that halt Customer’s ability to do business after Checkout Professional has been initially set-up and fully functional. Support Pack time is sold in increments of three (3) hours and pricing for the same is set forth below:
Three (3) hour support pack $495.00/Pack
All Support Packs are valid for one year from purchase date. Should a Customer require more than a single Support Pack for resolution of a given issue, additional Packs will be available for purchase at the time support is offered by credit card purchase.
* Site license is required for each location