Terms of Service
Effective from 15 March 2019
- 1. Agreement
- 1.1. These Terms specify the agreement between You and Proactive Software regarding the Services. They set out our obligations as a service provider and Your obligations as a customer. Please read them carefully.
- 1.2. These Terms apply from the time that Proactive Software provides You with access to any Service. By using any Service You acknowledge that You have read and understood and agree to be bound by these Terms.
- 1.3. If You are using the Service on behalf of a business, You represent to us that You have authority to bind that business or entity to these Terms and that business accepts these Terms.
- 1.4. You select the subscription term when you sign up to the Services. The subscription term automatically renews unless you notify ProActive Software by email prior to the end of the subscription term. In the case of annual subscriptions, ProActive Software will give you 30 days notice that the subscription term is about to be renewed. You commit to pay the Service Fees for the subscription term that you select.
- 1.5. The Services are provided for the subscription term chosen by You when you select your plan, subject to
a: Your right to cancel the automatic renewal under clause 1.4,
b: Your right to cancel Your account or terminate the Services in accordance with clause 7 and
c: Our right to suspend the Services or terminate this Agreement in accordance with clause 8.
- 1.6. Whilst Proactive Software prohibits unauthorized conduct and content on the Services as indicated below, you may be exposed to such materials and you agree to use the Service at your own risk.
- 2. Access to Services
- 2.1. Proactive Software grants You the right to access and use the Services You have purchased via the Website and according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
- 3. Changes to the Services
- 3.1. Proactive Software may modify the Services, the Proactive Software Materials and Technology and/or the manner in which the Services are delivered at any time. We will notify You if we make a significant change to the Services.
- 4. Restrictions on Use
- 4.1. You must only use the Service, Website and where applicable, the APIs, for Your own lawful purposes, and in accordance with this Agreement and any notice sent by Proactive Software or condition posted on the Website.
- 4.2. You must not operate or use the Services if You are under the age of 16.
- 4.3. As a condition of access, when accessing and using the Services, and where applicable, the APIs, You must:
- 4.3.1. not collect or attempt to collect any information or communication about any other users of the Service including by monitoring or by intercepting any process or communication initiated by the Service;
- 4.3.2. not attempt to undermine the security or integrity of Proactive Software computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- 4.3.3. not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- 4.3.4. not transmit, or input into the Services or the Website, any files that may damage any other person's computing devices or software (including by introducing any malicious software or code);
- 4.3.5. not input into the Services or the Website any content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which You do not have the right to use);
- 4.3.6. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website; and
- 4.3.7. not grant or assign rights in the Services or the Website in any way.
- 4.4. Your subscription and Our Service Fees are "per user". The maximum number of users allowed to access the Services is specified in your subscription plan. Only one person may be associated with a user account. You may swap out, delete or suspend a user, and then assign a new user to Your account but you must not exceed the number of users in any way.
- 5. Fees and Payment
- 5.1. The Website sets out the Service Fees for the different subscription terms. You must pay the Services Fees in advance.
- 5.2. You may pay by credit card, or on invoice where indicated in the subscription plan. Where payment is on invoice, payment is due within 14 days after the invoice is received. Late payments may result in Your account suspension and subsequent cancellation.
- 5.3. No refunds will be made for partial months of service or unused subscriptions.
- 5.4. All fees charged are exclusive of local sales taxes which are Your responsibility to pay.
- 5.5. We may change the Services Fees at any time. Any changes will commence at the beginning of any further or renewal terms after your current subscription term.
- 6. Your Account Information
- 6.1. You agree to provide us with accurate and complete registration and account information and to maintain and promptly update that information in the event of any changes to ensure it is current at all times.
- 6.2. You agree to keep Your login details confidential and secure and will not share them with others.
- 6.3. You are solely responsible for all activity in connection with access to the Services and/or Website through your account or using your login.
- 6.4. If You know or suspect that Your login information has or is likely to become used in an unauthorized way You must immediately change Your password. If You are unable to change Your password, You must immediately notify Proactive Software. We may request that you change your password(s) in connection with the Services at any time, and you will promptly comply with any such request and all reasonable directions We issue in relation to the Services.
- 7. Cancellation
- 7.1. You can cancel Your account and/or terminate the Services at any time by email sent to email@example.com
- 7.2. If You cancel Your account or terminate the Services before the end of Your subscription term, Proactive Software will not provide any refund for any remaining prepaid period for that term.
- 8. Suspension and termination
- 8.1. If:
- 8.1.1. You breach any of these Terms and the breach is not capable of being remedied;
- 8.1.2. You breach any of these Terms where the breach is capable of being remedied but You do not remedy the breach within 14 days after receiving notice of the breach;
- 8.1.3. You or Your business become insolvent, go into liquidation, have a receiver or manager appointed, make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction;
- 8.1.4. Proactive Software has not received payment of an invoice issued to You within 7 days after the due date, and You have failed to remedy the non-payment within 7 days of receiving notice of the non-payment;
- 8.1.5. as determined by Proactive Software, Your use of the Service may result in material harm to Proactive Software services or any of its users including, if You are using the API and Your code causes unacceptable server load or issues or your use of the Services is otherwise unlawful,
- 8.2. then Proactive Software may, at its sole discretion:
- 8.2.1. terminate this Agreement and/or Your use of the Services and the Website; or
- 8.2.2. suspend for any definite or indefinite period of time, Your access to and use of the Services and the Website.
- 8.3. Where We take any action under this clause 8, We will promptly notify You.
- 9. Consequences of termination
- 9.1. Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- 9.1.1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- 9.1.2. immediately cease to use the Services and the Website.
- 9.2. Clauses 5, 11, 15, 16, 17, 18, 19, and 25 survive the expiry or termination of these Terms.
- 10. Service Availability and Support
- 10.1. Proactive Software aims to provide a Service availability of 99.99%. In the event of an outage or server access issue, Proactive Software will act to restore customer server access.
- 10.2. While Proactive Software makes all efforts to prevent any disruption to Services during any update or upgrade, there may be times where the Service is inaccessible for a period of time.
- 10.3. Proactive Software is committed to providing excellent customer service, we aim to answer most support issues within 3 hours but Proactive Software makes no guarantee on the period of time before support is provided.
- 10.4. In the event that urgent support is required, we will do take all practical steps to assist. Email support is available 24/7, phone support is available 7am-6pm, Mon-Fri based on Pacific time - GMT+12.
- 11. Intellectual Property
- 11.1. You acknowledge and agree that Proactive Software or its licensor is and remains the owner of, and retains all Intellectual Property Rights in the Proactive Software Materials and Technology, the Services, the Website and any derivative works of them. Except for the right to access the Services and the Website provided for in this Agreement, You do not obtain any rights in the Proactive Software Materials and Technology or the Services.
- 11.2. Each party consents to the other party's use of its brand for the purpose of promoting the use of the Proactive Software services by other potential customers. There is no charge associated with such use and use must be in accordance with any brand use guidelines notified by the owning party from time to time.
- 12. Data
- 12.1. As between You and Proactive Software:
- 12.1.1. Proactive Software owns the rights, title, interest and Intellectual Property Rights in the Proactive Software Data. Proactive Software grants You the right, for the term of this Agreement, to access and use any Proactive Software Data that We supply to You in relation to the Services; and
- 12.1.2. You own the rights, title, and interest and Intellectual Property Rights in the Customer Data. You grant Proactive Software the right to access and use the Customer Data in relation to the Services and to provide support.
- 12.2. Where You incorporate or enter data into the Services You must ensure, in relation to such data, that:
- 12.2.1. You collect and maintain any personal information in the data in compliance with privacy laws;
- 12.2.2. You obtain any necessary third party permissions or consents;
- 12.2.3. You comply with any applicable third party license terms; and
- 12.2.4. the data does not incorporate any unlawful, illegal, fraudulent or harmful data
- 12.3. Proactive Software does not pre-screen any content but reserves the right (but not the obligation) to refuse or remove any content available via the Service that violates our Terms.
- 12.4. Subject to clause 12.5 You may export the Customer Data at any time.
- 12.5. On Your cancellation of Your account or termination of Services in accordance with clause 7 or Our termination of this Agreement or Your access to the Services in accordance with clause 8, Your Customer Data will be held for three months and then permanently deleted unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
- 12.6. Demo sessions and trials of Proactive Software products are archived the month after creation and deleted the following month. After that period if you would like to use the Services, you must purchase a subscription.
- 13. Data Processing Agreement
- 13.1. The Data Processing Agreement set out in Annex A applies to the extent that Proactive Software is processing Personal Data subject to EU Data Protection Law in the course of the performance of the Services.
- 14. Security and privacy
- 14.1. You consent to Proactive Software's Privacy Notice (available here www.proworkflow.com/company/privacy) which explains how We process any personal information We collect.
- 14.2. We will endeavour to provide a secure environment to protect the integrity and security of the Service and of Your information and to prevent data loss. However, except where We are liable under the Applicable Data Protection Law, We provide no guarantee or warranty in relation to data loss or data breaches. You are responsible for backing up the Customer Data.
- 14.3. In the event of a security incident or privacy breach, We will take reasonable and necessary measures and actions to mitigate the incident or breach and/or impact of its effects and We will notify You of any subsequent changes to the Website or Services.
- 15. Confidentiality
- 15.1. Each party's obligations under this clause will survive termination of these Terms. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- 15.1.1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- 15.1.2. Clause 15.1.1 will not apply to any information which:
- 22.214.171.124. is or becomes public knowledge other than by a breach of this clause;
- 126.96.36.199. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- 188.8.131.52. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- 184.108.40.206. is independently developed without access to the Confidential Information.
- 16. Warranties
- 16.1. Each party warrants:
- 16.1.1. it has full power, capacity and authority to execute, deliver and perform its obligations under this Agreement; and
- 16.1.2. once executed, this Agreement constitutes legal, valid and binding obligations and is enforceable in accordance with its terms.
- 17. Warranty limitations
- 17.1. Other than the warranties in clause 16.1, Proactive Software makes no other warranty, representation or undertaking whatsoever in respect of the Services, including that Proactive Software does not warrant that the Services or any data will meet Your requirements or that they will be suitable for any particular purpose, will be compatible with any application, program or software not specifically identified as compatible or will be secure, uninterrupted or error-free.
- 17.2. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including warranties of merchantability, fitness for purpose, title and non-infringement.
- 17.3. You are acquiring the Services for the purposes of a business and the Consumer Guarantees Act 1993 does not apply to this Agreement.
- 18. Limitation of Liability
- 18.1. Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. To the greatest extent possible in accordance with applicable laws, We specifically disclaim any liability (whether based in contract, tort, strict liability or otherwise) for any direct, indirect, incidental or consequential damages arising out of or in any way connected with the access to or use of the Services or the Website.
- 18.2. In all cases where our liability is not excluded:
- 18.2.1. our liability is limited to the total amount We have received from You for the Service that the liability directly relates to; and
- 18.2.2. We will not be liable for any indirect, incidental, special or consequential damages, (including loss of profit, business, revenue, goodwill, anticipated savings, information or data).
- 18.3. Your only right with respect to dissatisfaction or problems with the Service is to cease to access and to use the Service.
- 19. You agree that You are solely responsible for any 3rd party applications You have built that access the ProWorkflow API. This includes supporting your code and any legal issues that may arise.
- 20. Indemnity
- 20.1. You indemnify Proactive Software against all claims, costs, damage and losses arising from Your breach of any of these Terms or any obligation You may have to Proactive Software, including any third party claims and any costs relating to the recovery of any fees that are due but have not been paid.
- 21. API license
- 21.1. Conditional upon You following these Terms, Proactive Software grants you a limited, non-exclusive, non- assignable, non-transferable license to use the ProWorkflow API to develop, test, and support any software application, website, or product, and to integrate the ProWorkflow API with your Application. Your license is subject to the limitations set out in these Terms and you agree that Proactive Software may terminate your license to use the ProWorkflow APIs if you violate these Terms in relation to the ProWorkflow API.
- 21.2. In addition to the restrictions in clause 4:
- 21.2.1. You may not use the ProWorkflow API or any other technology in a manner that accesses or uses any information beyond what Proactive Software allows under these Terms or the Online Documentation, that changes the Services, that breaks or circumvents any of Proactive Software's technical, administrative, process or security measures, that disrupts or degrades the performance of the Services or the ProWorkflow API, or that tests the vulnerability of Proactive Software's systems or networks;
- 21.2.2. You may not use the ProWorkflow API to replicate or compete with core products or services offered by Proactive Software; and
- 21.2.3. you may not sell, rent, lease, sublicense, redistribute, or syndicate access to the ProWorkflow API.
- 21.3. You are solely responsible for any 3rd party applications you have built, purchased or licensed that access the ProWorkflow API. This includes supporting your code and any legal issues that may arise.
- 22. App Store
- 22.1. Where you purchase our application through an App Store, You acknowledge that these Terms do not apply. Each App Store may have its own terms and conditions which apply. Your use of any App Store and/or download of any application from an App Store is solely at Your risk.
- 23. Revisions
- 23.1. We may amend these Terms at any time without notice, by posting the revised version on the Website, by notifying you in accordance with clause 24 or by communicating it to You through the Services). Revised terms will be effective from the time they are posted, but will not apply retroactively. Your continued use of the Services after the posting of revised terms constitutes Your acceptance of such revised terms.
- 24. Notices
- 24.1. Proactive Software will deliver all notices under this Agreement by email sent to the email address used by You to register for the Services. You will deliver any notice by email sent to firstname.lastname@example.org
- 25. Miscellaneous
- 25.1. Entire agreement: These Terms, together with the Privacy Notice, the Data Processing Agreement where applicable, and the terms of any other notices or instructions We give to You under these Terms constitute the entire agreement between You and Proactive Software and govern your use of the Services and Website. These Terms supersede any prior agreements or earlier versions of these Terms between You and Proactive Software for the use of the Services and Website as of the effective date indicated at the beginning of these Terms.
- 25.2. Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- 25.3. No Assignment: You may not assign or transfer any rights to any other person without Proactive Software's prior written consent.
- 25.4. Waiver: The failure by any party to enforce any provisions of this agreement at any time shall not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.
- 25.5. Governing law: This Agreement is governed by the laws of New Zealand, and each party irrevocably submits to the non-exclusive jurisdiction of the New Zealand courts.
- 25.6. Jurisdictional Matters: If You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and access or use the Service. If You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, You may not enter into this Agreement and You may not download, access or use the Service. By entering into this Agreement, You represent that You have verified in Your own jurisdiction that Your use of the Service is allowed.
- 26. Interpretation and definitions
- 26.1. Interpretation: In these Terms, unless the context otherwise requires:
- 26.1.1. the singular includes the plural and vice versa;
- 26.1.2. a reference to materials means a reference to materials of any kind whether in the form of documentation, software or otherwise;
- 26.1.3. a reference to either party includes reference to its successors and permitted assigns (and where the context so permits) its personnel and representatives;
- 26.1.4. any agreement not to do a thing also constitutes an agreement not to suffer or permit or cause that thing to be done;
- 26.1.5. the words "includes" and "including" are to be read as being followed by the words "without limitation"; and
- 26.1.6. a reference to any documentation and the Website includes as varied or substituted.
- 26.2. Defined terms:
App Store means a third party facility where you can purchase applications including the Apple iPhone store.
Applicable Data Protection Law means all applicable data protection and privacy laws including, where applicable, EU data protection law or New Zealand privacy law.
Customer Data means any data inputted by You or with Your authority into the Website or the Services.
Online Documentation means the documentation available on the Website regarding the Services and use of the Services.
Parties means the customer and Proactive Software.
Proactive Software Data means all data collected by Us or inputted by Us into a Service or supplied by Us to You that is not Customer Data.
Proactive Software, We and Us means Proactive Software Limited (New Zealand Registered Company number 1439564) and includes its successors and assigns, related companies, officers, directors, employees and agents.
Proactive Software Materials and Technology means the materials and technology used by Proactive Software in relation to the Services including design and architecture, methodologies and tools, software and products and any online documentation.
ProWorkflow API means the API that Proactive Software makes available to customers.
Services means the project management software related services supplied by Proactive Software under the trading name ProWorkflow.
Terms means these Terms of Service.
Website means Proactive Software's website at https://www.proworkflow.com.
You means you as the customer of the Services and Your has a corresponding meaning.