Terms of Service

Processplan Terms of Service

READ THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION OR OTHERWISE USING THE SERVICE. BY CREATING AN ACCOUNT OR USING THE SERVICE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.

The parties agree as follows:

1.               DEFINITIONS. “You” and “your” refers to (i) the individual or entity that has ordered the Service from Provider by creating an account or by otherwise using the Service; or (ii) any other individual or entity that accesses or uses the Service. “Service” means the ProcessPlan application. “User” means an individual who is authorized by you to use the Service and to whom you have, or Provider at your request has, supplied User Credentials. “Provider” means ProcessPlan LLC.

2.               USE OF SERVICE.

2.1            License.  Subject to the terms and conditions of this Agreement, You and your Users shall have the nonexclusive, non-assignable, limited right to access and use the Service, solely for your internal business operations. You may allow Users to use the Service for this purpose and you are responsible for your Users’ compliance with this Agreement.

2.2            Registration.  To access and use the Service, you must have an active subscription for the Service (a “Subscription”). You must provide your full legal name and a valid email address to activate your subscription. You must be human to create an account. Accounts registered by automated methods are not permitted. Upon the establishment of a Subscription, an administrator user name and password is generated (“Admin Credentials”). By logging into the Service with such Admin Credentials, you can create and administer one or more user accounts, each with a unique user name and password (“User Credentials”). Admin Credentials and User Credentials are jointly referred to as “Credentials.” The Credentials are used to authenticate the User and thereby allow access to the Service, including any of your data stored as part of the Service. You are solely responsible for maintaining the confidentiality of the Credentials. You shall not share Credentials amongst multiple Users and you shall not transfer or share the Credentials with any third party. You acknowledge and agree that Provider and its licensors and suppliers may rely on the Credentials as the sole test to control whether users accessing and using the Service on your behalf are authorized to do so. You are fully liable for any act or omission of any users that access or use the Service with the Credentials.

2.3            Use Restrictions. You may not:

·       remove or modify any program markings or any notice of Provider’s or its licensors’ proprietary rights;

·       make the Service, or any materials relating thereto, available in any manner to any third party for use in the third party’s business operations;

·       modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service;

·       access or use the Service in order to build or support, or assist a third party in building or supporting, products or services competitive to the Service;

·       license, sell, rent, lease, transfer, assign, distribute, display, host, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service, or related materials, available to any third party other than as expressly permitted under the terms of this Agreement;

·       except as expressly provided herein, copy, reproduce, distribute, republish, download, display, post or transmit the Service, or any portion thereof, in any form or by any means; or

·       attempt to gain unauthorized access to the Service or related systems or networks.

2.4            Protection against Unauthorized Use.  You will use your best efforts to prevent any unauthorized use of the Service and will immediately notify Provider in writing of any unauthorized use that comes to your attention.  If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use.  You will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized use of the Service.

2.5            Changes; Modifications. Provider and its licensors and providers may, in its sole discretion, upgrade, enhance, change and modify the Service, including by discontinuing a Service or any aspect or feature thereof.  Provider further reserves the right to change and amend this Agreement, including the Privacy Policy. You will be notified of such changes and amendments, which may be made in Provider’s sole and exclusive discretion, and thereafter such change or amendment to this Agreement will be effective as of the 30th day thereafter. If such changes and amendments to this Agreement are not acceptable to you, you may terminate your access to and use of the Service. Continued access or use of the Service by you or your Users after such 30th day shall be deemed acceptance by you of the amended or changed terms.

3. TERM; Termination.

3.1            Term. The term of this Agreement (the “Term”) shall commence on the date you accept this Agreement and shall continue in full force and effect until either party terminates this Agreement pursuant to Section 3.2.

3.2            Termination. You may terminate this Agreement at any time by canceling your account. If you wish to cancel your account you may do so by clicking on the Account > Company Account link in the navigation bar at the top of the screen. Provider may, with or without cause, terminate or suspend your account and access to the Service without prior notice.  Without limiting the foregoing, the following may lead to a termination or suspension by Provider of the Service: (a) breach or violation of this Agreement, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) unexpected technical issues or problems, (e) extended periods of inactivity, or (f) failure to pay any fees owed for the Service.  Termination includes removal of access to all offerings within the Service and may also bar you from further use of the Service.  Furthermore, you agree that all terminations shall be made in Provider’s sole discretion and that Provider shall not be liable to you nor any third-party for any termination of your account or access to the Service.

3.3            Effect of Termination.  Upon termination of this Agreement, all rights to access or use the Service terminate. All provisions of this Agreement which by their nature extend beyond termination of this Agreement shall survive termination of this Agreement.

4.               USER OBLIGATIONS AND WARRANTIES.

4.1            You understand and agree not to use the Service to:

·       post content or initiate communications that are unlawful, libelous, abusive, obscene, discriminatory, or otherwise objectionable;

·       commit an illegal act, including but not limited to conspiring to violate laws;

·       upload, post, email, transmit or otherwise make available any content or initiate communications which include information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

·       upload, post, email, transmit or otherwise make available any content or initiate communication that infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;

·       upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

·       upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

·       use any high volume automatic, electronic or manual process to access, search or harvest information from the Service (including without limitation robots, spiders or scripts);

·       use any robot, spider, other automatic device, or manual process to extract, screen scrape, monitor, mine, or copy any static or dynamic web page on the Service or the content contained on any such web page for commercial use;

·       stalk or harass anyone;

·       interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

·       mirror or frame the Service or any portion thereof, place pop-up windows over its pages, or otherwise affect the display of its pages; or

·       monitor its availability, performance or functionality, or for any other benchmarking or competitive purposes.

4.2            Compliance with Laws.  You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service (e.g. privacy and security laws and regulations, CAN-SPAM ACT, copyright laws, international communications, and the transmission of technical or personal data). You agree to provide any notices and obtain any consents related to your use of the Service, including those related to the collection, use, processing, transfer and disclosure of personal information.

4.3            Account Information and Use.  You are solely responsible for all activity occurring under your account and will: (a) notify Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security, and (b) not impersonate another Provider user or provide false identity information to gain access to or use the Service.
4.4            Information Provided to Provider.  You represent and warrant that you own and control all of the rights to the information and materials that you store, post or transmit through the Service, or you otherwise have the right to use such information and materials; and the use of the information and materials you supply does not violate this Agreement, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for Provider or for third parties.  You understand that all information publicly posted or privately transmitted through the Service is your sole responsibility and that Provider will not be liable for any errors or omissions in any content.

4.5            Technical Requirements.  You must have the required equipment, software, and Internet access to use the Service. Acquiring, installing, maintaining and operating equipment and Internet access is solely your responsibility. Provider neither represents nor warrants that the Service will be accessible through all web browser releases or all versions of computing devices.

5.               FEES AND PAYMENT TERMS.

5.1   Subscription Fees. For the Service provided under this Agreement, you will pay Provider the subscription fees as stated for your selected plan level as shown at https://processplan.com/pricing .

5.2            Payment. Applicable fees will be invoiced to you at the end of your free trial and each month thereafter until you cancel your account. All amounts owed shall be due 30 days from your receipt of an invoice for same. You hereby authorize Provider to charge your credit card for payment of the Service on or shortly after each monthly due date. If for any reason Provider is unable to process your payment using the credit card information provided, Provider may immediately suspend or terminate your account. You are responsible for keeping your credit card information current and remain liable for all unpaid fees. All fees must be paid in United States currency. Fees are non-refundable and no refunds will be issued for partially used periods. Provider may modify the fees upon 30 days prior notice.

5.3            Taxes.  The fees and expenses due to Provider as set forth in this Agreement are net amounts to be received by Provider, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by you or imposed on Provider in the performance of this Agreement or otherwise due as a result of this Agreement. This section will not apply to taxes based solely on Provider’s income.

5.4            Offset.  Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.

6.               Intellectual Property Ownership AND RIGHTS.  Provider, and its licensors and providers, own all right, title and interest, including all related intellectual property rights in and to the Service, Provider’s (and its providers’) logos and trademarks, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. You retain all ownership and intellectual property rights in and to your data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership of all of your data. You grant Provider a worldwide, limited right and license to host, copy, transmit, view, modify, reformat, translate, transfer and display your data as necessary or appropriate for Provider to provide the Service in accordance with this Agreement.

7.               INDEMNIFICATION.

7.1            Provider Indemnity. Provider or its licensors or providers will defend you against any claims, actions, suits, demands, obligations, and proceedings (“Claims”) made or brought against you by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, any such Claim. If Provider receives information about an infringement or misappropriation claim related to the Service, Provider may in its discretion (i) modify the affected Service so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the affected Service in accordance with this Agreement, or (iii) terminate your rights to the affected Service and refund to you any unused prepaid fees covering the remainder of the term of the terminated subscriptions. This Section 7.1 states Provider’s sole liability to you, and your exclusive remedy against Provider, for a claim of infringement or misappropriation.

7.2            Indemnity by You.  You will, at your expense, defend, indemnify, and hold harmless Provider and their affiliates, and its and their, respective employees, officers, directors, suppliers, providers, licensors and agents (“Provider Indemnitees”) from and against any and all Claims of any kind threatened, asserted, or filed against Provider Indemnitees, and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees, witness fees, and court costs) incurred in connection with such Claims, arising out of or relating to (a) breach by you or a User of this Agreement; (b) any actual or alleged  infringement or violation of any copyright, trademark, trade secret, or other proprietary right of a third party; (c) any act or omission to act by you or anyone acting on your behalf; or (d) your data.

7.3            Procedure.  The indemnifying party’s obligations in Sections 7.1 and 7.2 are subject to the party seeking to be indemnified: (a) providing the other party reasonably prompt notice in writing of any such Claim; (b) providing the other party information, assistance, and authority, at the indemnifying party’s expense, to help the indemnifying party to defend such Claims; and (c) giving the other party sole control of the defense and settlement of the Claim.  The indemnified party will not have any right, without the other party’s written consent, to settle any such Claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement, blame, or wrongdoing (whether in contract, tort, or otherwise) on the part of the indemnified party or otherwise requires the indemnified party to take or refrain from taking any material action (such as the payment of fees).

8.               Disclaimer of Warranties. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  PROVIDER DOES NOT WARRANT THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS, (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (c) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

9.               Limitation of Liability.

9.1            Limitation of Remedy. EXCEPT FOR CLAIMS ARISING UNDER SECTION 7 AND TO THE EXTENT PERMITTED BY LAW, PROVIDER AND ITS SUPPLIERS AND PROVIDERS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO USER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2            Maximum Liability.  TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL PROVIDER’S TOTAL LIABILITY OF ANY AND ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) AMOUNTS PAID TO PROVIDER BY YOU FOR THE SERVICE IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND (B) US $100.
9.3            Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PROVIDER TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10.            CONFIDENTIALITY; PRIVACY; SECURITY.

10.1          Confidentiality.  Provider may disclose to the other party certain Trade Secrets and Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Trade Secrets” means information that is a trade secret under law; “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; “Proprietary Information” means Trade Secrets and Confidential Information; the “Disclosing Party” refers to the party disclosing Proprietary Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipient’s employees, providers or agents. Subject to Section 10.2, Recipient agrees to hold the Proprietary Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement. You acknowledge that the Service and related materials are the Proprietary Information of Provider or its licensors and other providers. The obligations in this Section shall continue for so long as such information constitutes Proprietary Information. The foregoing obligations shall not apply if and to the extent that: (i) Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach of this Agreement; or (ii) Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Proprietary Information, provided however, that, Recipient shall first notify Disclosing Party prior to disclosure, if allowed by law, in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Proprietary Information which Recipient is required to disclose.

10.2          Privacy Policy.  Provider acknowledges that your privacy is important. Notwithstanding anything to the contrary in this Agreement, you and Provider acknowledge and agree to the terms set forth in the Privacy Policy set forth at http://processplan.com/privacy-policy. To the extent the Privacy Policy conflicts with this Agreement, the Privacy Policy shall control. The Privacy Policy is subject to change at Provider’s discretion. The Privacy Policy governs only information collected through the Service or the administration thereof.

10.3          Data Privacy; Security. You acknowledge and agree that the Service may include the storage and processing of personal data that may be subject to mandatory legislation, such as the legislation based on EU Directive 95/46/EC which aims to prevent the violation of personal integrity in the processing of personal data (as amended, the “Personal Data Act”). You will always be considered as the controller of personal data provided by you or Users even if the processing is carried out by Provider or its providers. Provider and its providers engaged for the storage and other processing of data are considered your data processors (personal data assistants) and it is your sole responsibility to ensure that such processing of personal data is in compliance with the Personal Data Act and other applicable legislation. You will promptly notify Provider if its or its providers’ processing of personal data is subject to legislation which is not based on the Personal Data Act. If a provision under the Personal Data Act or other legislation would confer responsibility or liability directly on Provider or its providers to ensure compliance with such legislation, Provider is unwilling to grant any access to the Service and you must cease access to and use of the Service immediately and notify Provider thereof. Provider acknowledges that the security of the personal data and other data belonging to you is important. Provider and its providers will take reasonable steps to help ensure the safety of your data in compliance with the Personal Data Act, if applicable. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you therefore acknowledge and agree that the Service are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.

11.            TRADEMARKS AND TRADE NAMES.  Nothing in this Agreement confers upon either party any right to use the other party’s trademarks or trade names (“Marks”), except in Provider’s performance of the Service. All use of such Marks by either party will inure to the benefit of the owner of such Marks, use of which will be subject to specifications controlled by the owner.

12.            EXPORT. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Service. You agree that such export control laws govern your use of the Service (including technical data), and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs or materials resulting from the Service will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

13.            GENERAL. Provider may audit your use of the Service. You agree to cooperate with Provider’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree that Provider shall not be responsible for any of your costs incurred in cooperating with the audit. Provider will be and act as an independent contractor (and not as your agent or representative) in the performance of this Agreement and no joint venture, partnership, or agency relationship between the parties. Provider may utilize subcontractors or other third parties to perform its duties under this Agreement. You may not assign the agreement or give or transfer the Service or an interest in them to another individual or entity. All notices, authorizations, and requests in connection with this Agreement will be deemed given: (a) three days after they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; (b) one day after they are sent by air express courier, charges prepaid; or (c) on the day of transmittal if sent by facsimile or by email, in each case to such address as the party to receive the notice or request so designates by written notice to the other. Provider will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Provider’s reasonable control. This Agreement is governed by and construed in accordance with the laws of the State of Georgia without regard to conflict of laws principles. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement will be construed as though all parties had drafted it. This Agreement (including information and other agreements incorporated into this Agreement by reference) is the final and complete expression of the agreement between these parties regarding the Service.  This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement.  Provider will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise.