Master Subscription Agreement
Master Subscription
Agreement
This Master Subscription Agreement (“Agreement”) is made and effective the date that Client agrees to this Agreement as set forth below (“Effective Date”) by and between McProof, LLC dba PrepProof, a Delaware limited liability company, (“PrepProof”) and the Client that agrees to this Agreement as set forth below, (“Client”). PrepProof and Client are each a “Party” and collectively the “Parties”.
PREPPROOF PROVIDES PREPPROOF SERVICES ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH ALL TERMS AND CONDITIONS IN THIS AGREEMENT. BY ACCESSING OR USING PREPPROOF SERVICES, CREATING A CLIENT ACCOUNT FOR PREPPROOF SERVICES, CLICKING ANY “ACCEPT” BUTTON INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR TAKING ANY OTHER SIMILAR ACTION THAT SHOWS CLIENT’S ACCEPTANCE OF THIS AGREEMENT, CLIENT:
(A) ACCEPTS THIS AGREEMENT AND AGREES THAT CLIENT IS LEGALLY BOUND BY ITS TERMS AND CONDITIONS;
(B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND CLIENT TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT; AND
(C) REPRESENTS AND WARRANTS THAT IT WILL CAUSE ALL OF ITS PERSONNEL AND AUTHORIZED USERS TO COMPLY WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, RESTRICTIONS AND AGREEMENTS SET FORTH IN THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO ANY TERM OR CONDITION HEREIN, CLIENT MUST NOT ACCESS OR USE ANY PREPPROOF SERVICES. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CLIENT REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL IS 18 YEARS OF AGE OR OLDER AND HAS ALL RIGHT, POWER AND AUTHORITY NECESSARY TO BIND CLIENT TO THIS AGREEMENT.
STRUCTURE OF AGREEMENT
Each Order Form is a Separate Agreement. Each order form that sets forth the Services to be performed or Subscription Service to be provided and signed or agreed to (whether by clickthrough process or otherwise) by a representatives of Client (“Order Form”) shall be deemed to incorporate by reference all of the terms and conditions of this Agreement and shall constitute a separate and binding contract between PrepProof and Client.
Precedence. In the event there are any conflicts or any inconsistencies between the terms and conditions of any Order Form and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control, unless the Order Form specifically states that the Order Form shall control and cites the term or condition of this Agreement to be overridden.
SUBSCRIPTION SERVICE AND SERVICES
Subscription Service. Subject to the terms and conditions herein, PrepProof agrees to provide access to PrepProof’s online business application described in the applicable Order Form (“Subscription Service”) during the term of the applicable Order Form. For clarity, Subscription Service does not include Services.
Services. Subject to the terms and conditions herein, PrepProof agrees to perform the professional services described in the applicable Order Form (“Professional Services”) during the term of the applicable Order Form. For clarity, Professional Services does not include the Subscription Service. The Subscription Service and Professional Services are, collectively, the “PrepProof Services”.
Subscription Service Updates. Client acknowledges that PrepProof reserves the right at any time, or from time to time, with or without notice to update the content, functionality, or user interface of the Subscription Service at PrepProof’s sole discretion.
Use Restrictions. Client may use PrepProof Services and PrepProof App (defined below) (collectively, the “PrepProof Products”) for its own internal business purposes, and for no other purpose. Client shall not use PrepProof Products for any purposes beyond the scope of the access granted in this Agreement. Without limiting the generality of the foregoing, Client shall not at any time, directly or indirectly, and shall not permit any Authorized User (defined below) or any other third party to:
(i) copy, modify, or create derivative works of PrepProof Products, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available PrepProof Products to any third party expect as expressly authorized herein;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of PrepProof Products, in whole or in part;
(iv) remove any proprietary notices from PrepProof Products;
(v) use PrepProof Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right; or
(vi) use PrepProof Products to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations.
Third Party Services. PrepProof or third party providers may offer Third Party Services (defined below). PrepProof does not warrant any such Third Party Services, regardless of whether or not such Third Party Services are provided by a third party that is a member of a PrepProof partner program or otherwise designated by PrepProof as “certified,” “approved” or “recommended.” Any procurement by Client of such Third Party Services is solely between Client and the applicable third party provider. PrepProof is not responsible for any aspect of such Third Party Services that Client may procure or connect to through PrepProof Products, or any interoperation, descriptions, promises, or other information related to the foregoing. “Third Party Services” means services, card services, tasks, home repairs, child care, applications, services, or implementation, customization and other professional or consulting services, provided by a party other than PrepProof employees.
USER ACCOUNTS; MOBILE APPLICATION
Authorized Users. Each employee of Client who is authorized by Client to use the Subscription Service (“Authorized User”) and who accesses the Subscription Service must be issued a separate user account (with a unique ID and password) by PrepProof and/or Client (“User Accounts”). Client shall ensure that passwords associated with the User Accounts remain confidential and secure and to not allow multiple users to utilize the same User Account. Client shall not provide, or provide access to, a User Account to any third party without prior written consent of PrepProof. If any Authorized User becomes no longer authorized by Client to have such access to the Subscription Service, then Client shall immediately notify PrepProof. Client will cause all Authorized Users to comply at all times with the terms and conditions set forth in this Agreement and any standard terms and conditions applicable to the use of the Subscription Service that may be made available to Authorized Users from time to time. Client is responsible for any breach by any Authorized User of any term or condition in this Agreement or any standard terms and conditions applicable to the use of the Subscription Service.
Mobile Application. PrepProof may provide Client access to a mobile or web-based application (which may be a combination of proprietary applications and software and third party software) in connection with the Subscription Service (“PrepProof App”). If PrepProof provides the PrepProof App and Client desires to use the PrepProof App, Client and its employees may download and use the PrepProof App on their mobile device, subject to PrepProof’s standard end user license agreement and additional fees. Client will cause all Client employees to comply at all times with the terms and conditions set forth in such PrepProof standard end user license agreement. Client is responsible for any breach by any Client employee of any term or condition of the PrepProof standard end user license agreement.
CLIENT OBLIGATIONS
Client Personnel. Client shall designate Client personnel reasonably qualified by experience and expertise to interface with PrepProof personnel and to participate in and perform Client’s obligations under this Agreement and the applicable Order Form. Client and its personnel shall, to the extent reasonably practicable, cooperate with PrepProof’s reasonable requests for assistance and information in order to facilitate the provision of PrepProof Products in accordance with this Agreement and the applicable Order Form.
Client System. Client, at its sole cost and expense, shall be responsible to purchase or otherwise obtain the computer systems, devices, telecommunications network, gateway and internet access equipment and services necessary for Client to access the Subscription Service (“Client System”). Client is responsible for all maintenance and required upgrades of Client System.
Additional Client Obligations. Client shall be responsible for: (i) all acts that occur in connection with its Authorized Users’ Subscription Service accounts or its employees’ PrepProof App accounts; (ii) assuring that its employees receive adequate disclosures of the terms and conditions governing such its employees’ use of PrepProof Products; and (iii) all transmissions initiated by Client Employees during use of PrepProof Products.
CLIENT DATA
Client Data. All collection, usage, disclosure and other matters related to the data, information, or material that Client, Authorized Users or Client employees submit or enter into PrepProof Products (“Client Data”) shall be covered pursuant to the terms of PrepProof’s Privacy Policy, available at https://www.prepproof.com/privacy-policy, as maybe be updated and amended from time to time in accordance with its terms.
Aggregated Data. Client hereby grants to PrepProof an irrevocable, perpetual, royalty free license to use, reproduce and modify Client Data to create Aggregated Data. “Aggregated Data” is Client Data that is anonymized in a manner that it does not identify any personal or entity. Client hereby grants PrepProof a perpetual, irrevocable, fully paid, royalty-free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Aggregated Data, with the right to sublicense each and every such right, for any and all business purposes.
INTELLECTUAL PROPERTY
Confidential Information. Each Party acknowledges that the Confidential Information of the other Party, as well as all related trademarks, logos, other names or markings identifying the Confidential Information, and other intellectual property rights of the other Party, are and shall remain the exclusive property of the other Party, whether or not protected under applicable intellectual or property laws.
PrepProof Products. PrepProof reserves all rights not expressly granted to Client in this Agreement, including without limitation all rights in or to all PrepProof Products or any PrepProof documentation, deliverables, work product or work processes. Client agrees that PrepProof shall own all intellectual property rights in any copy, translation, modification or adaptation of PrepProof Products or any PrepProof documentation, deliverables, work product or work processes, or development based thereon, which may be created by or for PrepProof, or by or for Client. If, by operation of law, Client is deemed to possess any rights in such items, then Client hereby assigns such intellectual property rights to PrepProof or its licensors. To the extent Client’s rights are inalienable under applicable law, Client hereby waives such rights and, if such waiver is deemed invalid, grants to PrepProof, its licensors and their designees the exclusive, irrevocable, perpetual, worldwide, royalty free right to use, market, modify and grant licenses to such items without identifying Client or seeking Client’s consent. Client agrees not to take any action that interferes with intellectual proprietary rights of PrepProof or attempt to copyright or patent any portion of PrepProof’s property or register or attempt to register any trademark, service mark, trade name, or company name which is identical or confusingly similar to said marks, names, or markings of PrepProof.
Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to PrepProof by mail, email, telephone, or otherwise, suggesting or recommending changes to PrepProof Products, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, "Feedback"), PrepProof is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to PrepProof on Client's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and PrepProof is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although PrepProof is not required to use any Feedback.
PAYMENT
Fees. Client will pay the fees set out in the Order Form for PrepProof Products (“Fees”). The Fees do not include any applicable sales, VAT, or other taxes and charges assessed on the Subscription Service. The Fees do not include the fees owed by Client employees for download and use of the PrepProof App. Client is responsible for paying all taxes levied on the Subscription Service and the Professional Services (except taxes on PrepProof’s net income).
Invoices. All invoices are due within thirty (30) days of the date of invoice, and in addition to any other express remedy provided herein, overdue accounts will be subject to a service charge equal to the lesser of (i) 1.5% calculated on a monthly basis, or (ii) the maximum amount allowed by law. Client shall pay any and all costs of collection, including but not limited to, legal fees incurred, if any payment is more than thirty (30) days overdue.
TERM & TERMINATION
Term. This Agreement shall be in effect from the Effective Date and shall continue until the end of the term of the last Order Form or until terminated in accordance with this Agreement. An Order Form shall be in effect from the effective date of such Order Form and shall continue for the term specified in such Order Form or until terminated in accordance with this Agreement.
Termination. Either Party may immediately terminate this Agreement or any Order Form by giving written notice to the other Party, if the other Party (i) materially breaches any obligations under this Agreement or such Order Form and fails to cure such breach within thirty (30) days after the non-breaching Party demands such cure, (ii) becomes insolvent or assigns all, or substantially all, of its assets or business for the benefit of creditors, or (iv) resolves to wind up business, dissolve, or liquidate.
Effect of Termination. All Fees incurred through the date of termination must be paid within thirty (30) days regardless of the reason for such termination. Upon termination of this Agreement, (i) Client shall immediately cease using PrepProof Products and cause all Client employees to cease using PrepProof Products; and (ii) PrepProof’s obligation to provide PrepProof Products shall terminate immediately. For clarity, termination of one Order Form does not automatically terminate any other Order Form. Termination of this Agreement in accordance with this section automatically terminates all Order Forms.
Suspension. PrepProof may suspend any password, account or use of PrepProof Products if PrepProof has reason to believe Client or any Authorized User has breached any term of this Agreement, any Order Form or any terms and conditions applicable to the access or use of PrepProof Products.
Survival. Sections 1, 5, 6, 7, 8, 9, 11, 12, and 13 will survive any termination or expiration of this Agreement.
CONFIDENTIALITY
Each Party may disclose to the other Party non-public, proprietary or confidential information, including but not limited to technical, marketing, financial, personnel, and other proprietary data and information, excluding Client Data (“Confidential Information”). Confidential Information does not include (i) any information lawfully obtained by the receiving Party independently of the disclosing Party’s Confidential Information without breach of any obligation of confidence or this Agreement; (ii) any information that enters the public domain without breach of any public confidence or breach of this Agreement by a Party or its agents; or (iii) information that was independently developed without the use of the disclosing Party’s Confidential Information. Each Party acknowledges and agrees that any Confidential Information received or obtained from the other Party will be the sole and exclusive property of the other Party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement. Each Party may disclose Confidential Information in limited circumstances where it is required under a law, regulation, or to comply with a legal process such as a court order, subpoena, search warrant, or a law enforcement request; provided, that the Party required to disclose Confidential Information shall, if permitted by law, reasonably cooperate with the other Party (at the other Party’s request and expense) to limit such disclosure of Confidential Information to the extent reasonably possible. If a Party is still legally required to disclose any Confidential Information, it may only disclose that portion of the Confidential Information that its legal counsel advises in writing that it is legally required to disclose. In the event that either Party discovers a breach of security affecting Confidential Information, it shall promptly notify the other Party in writing of the nature of such breach and use commercially reasonable efforts to remediate the situation. Each Party agrees that the breach or threatened breach by it of this section may cause the other Party irreparable injury without adequate remedy at law. Therefore, each Party agrees that upon such breach or threatened breach of this section by it, the other Party will be entitled to seek injunctive relief to prevent it from commencing or continuing any action constituting such breach, without having to post a bond or other security and without having to prove the inadequacy of other available remedies. Nothing in this section will limit any other remedy available to either Party.
WARRANTIES & DISCLAIMERS
Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it has the authority and right to enter into and perform this Agreement; (ii) this Agreement is a legal and valid obligation binding upon it and is enforceable in accordance with its terms; and (iii) its execution, delivery and performance of this Agreement will not conflict in any material fashion with the terms of any other agreement or instrument to which it is or becomes a party or by which it is or becomes bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having authority over it.
Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY ORDER FORM, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN, TO THE OTHER PARTY OR ANY THIRD PARTY WITH RESPECT TO THE SUBSCRIPTION SERVICE OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY ORDER FORM. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. CLIENT ACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THIS AGREEMENT OR ANY ORDER FORM IT HAS NOT RELIED AND IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY PREPROOF OR ANY OF ITS AFFILIATES OR REPRESENTATIVES) OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE APPLICABLE ORDER FORM (OR OTHER RELATED DOCUMENTS EXPRESSLY REFERRED TO HEREIN) AND THAT IT WILL NOT HAVE ANY RIGHT OR REMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY ORDER FORM.
INDEMNITY
Client Indemnification. Client agrees to indemnify, defend and hold harmless PrepProof, its affiliates, directors, officers, employees, independent contractors and agents from and against any and all actions, causes of action, claims, demands, suits, litigation, investigations, subpoenas and proceedings and all related liabilities, damages, judgments, fines, fees, penalties, settlements, costs and other expenses of any nature whatsoever (including but not limited to reasonable attorney’s fees and costs or pursuing indemnification) arising from or related to: (i) Client’s or its employees’ use of PrepProof Products; (ii) Client Data; (iii) Client System; or (iv) Client’s breach of this Agreement or its employees’ breach of the PrepProof standard end user license agreement.
PrepProof Indemnification. PrepProof agrees to indemnify, defend and hold harmless Client from and against any and all actions, causes of action, claims, demands, suits, litigation, investigations, subpoenas and proceedings and all related liabilities, damages, judgments, fines, fees, penalties, settlements, costs and other expenses of any nature whatsoever (including but not limited to reasonable attorney’s fees and costs or pursuing indemnification) arising from or related to third party claims that the Subscription Services, as provided by PrepProof, infringe upon or misappropriate the United States copyright, trademark or trade secret right of such third party. Notwithstanding the foregoing, this indemnity shall not apply to any claim of an intellectual property violation arising from or due to (i) the integration or combination of PrepProof Services with products or services not provided by PrepProof; (ii) any modification to PrepProof Services by any party other than PrepProof; or (iii) unauthorized use of PrepProof Services. PrepProof shall have sole control of the defense of any claim under this subsection b.
Alternative. If Client’s use of PrepProof Services is prevented by injunction or court order because of any such claim, or, in PrepProof’s opinion, if PrepProof Services are likely to become the subject of any such claim, then PrepProof, at its sole discretion and at no additional expense to Client, shall either (i) procure the right for Client to continue using PrepProof Services in accordance with the terms of the applicable Order Form; or (ii) replace or modify PrepProof Services so that such PrepProof Services becomes non-infringing. If PrepProof determines that neither (i) nor (ii) is commercially practicable, then PrepProof may terminate Client’s right to use the infringing PrepProof Services, in which event Client shall receive, as its sole and exclusive remedy, a pro-rata refund of amounts paid for PrepProof Services based upon the term of the applicable Order Form.
Exclusive Remedy. THE RIGHTS AND REMEDIES GRANTED TO CLIENT UNDER THIS SECTION 11 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED INFRINGEMENT CLAIM.
LIMITATION OF LIABILITY
IN NO EVENT SHALL PREPPROOF BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, LACK OF COMPLIANCE, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH PREPPROOF PRODUCTS, THIS AGREEMENT, ANY ORDER FORM, OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT OR ANY ORDER FORM, WHETHER OR NOT PREPPROOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. THE TOTAL CUMULATIVE LIABILITY OF PREPPROOF AND ITS AFFILIATES TO CLIENT AND ALL OTHER PARTIES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PREPPROOF PRODUCTS, THIS AGREEMENT, ANY ORDER FORM, OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT OR ANY ORDER FORM, REGARDLESS OF THE FORM OF ACTION (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, INDEMNITY, MISREPRESENTATION, TORT AND STRICT LIABILITY) SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES ACTUALLY RECEIVED BY PREPPROOF FROM CLIENT UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT CAUSING THE DAMAGES RELATING TO CLIENT’S FIRST CLAIM MADE AGAINST PREPPROOF OR ANY OF ITS AFFILIATES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PREPPROOF PRODUCTS, THIS AGREEMENT, ANY ORDER FORM, OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT OR ANY ORDER FORM.
GENERAL PROVISIONS
Audit Rights. During the term of this Agreement and for twelve (12) months thereafter, PrepProof may audit Client’s use of PrepProof Products to ensure that Client is in compliance with this Agreement upon reasonable prior written notice. Upon such notice, Client will provide an PrepProof representative with reasonable access to all relevant records during regular business hours. The PrepProof representative shall comply with all reasonable security measures of Client.
Force Majeure. Any delay in or failure of performance by either Party under this Agreement or any Order Form shall not be considered a breach of this Agreement or such Order Form and shall be excused to the extent caused by any occurrence beyond the reasonable control of such Party. Such acts shall include, but not be limited to, fortuitous events and acts of God; wars, riots, terrorism and insurrections; laws, decrees, ordinances and governmental regulations; strikes and lockouts; transportation stoppages or slowdowns; and floods, fires and explosions. Notwithstanding the foregoing, if such act or condition beyond the reasonable control of such Party continues for a period of thirty (30) days or more, the unaffected Party may, on notice to the Party affected, terminate this Agreement or the applicable Order Form, and neither Party shall have any further obligation to the other save for those provisions hereunder which, by their terms, survive the termination of this Agreement or Order Form. Notwithstanding anything to the contrary, payment obligations may not be excused due to a force majeure event.
No Third Party Beneficiaries. Except as set forth in the Indemnity section hereunder, no person or entity other than the Parties hereto, and their respective successors and/or assigns, shall have any right, remedies, obligations or liabilities under the terms of this Agreement.
Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed received (i) upon delivery when delivered in person; or (ii) 2 business days after posted by registered or certified mail, postage prepaid, return receipt requested by mail.
Governing Law; Waiver of Jury Trial. This Agreement will be governed by and construed in accordance with the internal laws of New York, without regard to the conflicts of law principles of New York or any other state. The Parties hereby irrevocably submit to the exclusive jurisdiction of any United States federal or New York state court located in New York, New York with respect to any matter arising out of or relating to this Agreement, and the Parties hereby irrevocably agree that all claims in respect thereto will be heard and determined in any such court and irrevocably waive any objection they may now or hereafter have as to the venue for any proceeding relating to this Agreement or that such court is an non-convenient forum. The Parties to this Agreement, and any of their affiliates, assignees or successors waive the right to a trial by jury on any claim relating to or arising out of this Agreement.
Assignment. Client may not assign, pledge or otherwise transfer (whether by operation of law, acquisition or sale of stock or assets, merger, consolidation, transfer of control or otherwise) this Agreement or any Order Form or any rights or obligations under this Agreement or any Order Form without the prior written consent of PrepProof, such consent to be exercised in the sole discretion of PrepProof.
Remedies. Except as specifically provided herein with respect to sole and exclusive remedies, the Parties’ rights and remedies under this Agreement and any Order Form are cumulative. If any legal action is brought to enforce this Agreement or any Order Form, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses.
Waivers; Amendments. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement or any Order Form on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. PrepProof may amend this Agreement from time to time by posting an amended version at its website or sending Client written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Client first gives PrepProof written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its then current provisions, and the amendment will become effective at the start of Client’s next renewal following the Proposed Amendment Date. Client’s continued use of the PrepProof Services following the effective date of an amendment will confirm Client’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party. Client recognizes and agrees that PrepProof’s privacy policy may be amended from time to time at PrepProof’s discretion.
Severability. If a court of competent jurisdiction holds any provision, or part of any provision, of this Agreement or any Order Form to be illegal or invalid, the provision, or the affected part of such provision, shall be null and void and deemed automatically severed from this Agreement or such Order Form. Any such holding shall not affect the legality or validity of the remaining provisions or remaining parts or unaffected provisions of this Agreement or such Order Form.
Relationship Of The Parties. The Parties are independent contractors. Nothing in this Agreement or in any Order Form shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the Parties.
Counterparts. This Agreement and any Order Form may be executed in counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument. The exchange of a fully executed Agreement or Order Form (in counterparts or otherwise) by fax, .pdf, .pic, .tif, .jpg or other legible image file shall be sufficient to bind the Parties to the terms and conditions of this Agreement or such Order Form.
Entire Agreement. This Agreement and Order Forms constitute the entire agreement between the Parties regarding this matter, and they supersede all prior discussions or agreements related to the same.
Last Updated July 19, 2024
This Master Subscription Agreement (“Agreement”) is made and effective the date that Client agrees to this Agreement as set forth below (“Effective Date”) by and between McProof, LLC dba PrepProof, a Delaware limited liability company, (“PrepProof”) and the Client that agrees to this Agreement as set forth below, (“Client”). PrepProof and Client are each a “Party” and collectively the “Parties”.
PREPPROOF PROVIDES PREPPROOF SERVICES ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH ALL TERMS AND CONDITIONS IN THIS AGREEMENT. BY ACCESSING OR USING PREPPROOF SERVICES, CREATING A CLIENT ACCOUNT FOR PREPPROOF SERVICES, CLICKING ANY “ACCEPT” BUTTON INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR TAKING ANY OTHER SIMILAR ACTION THAT SHOWS CLIENT’S ACCEPTANCE OF THIS AGREEMENT, CLIENT:
(A) ACCEPTS THIS AGREEMENT AND AGREES THAT CLIENT IS LEGALLY BOUND BY ITS TERMS AND CONDITIONS;
(B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND CLIENT TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT; AND
(C) REPRESENTS AND WARRANTS THAT IT WILL CAUSE ALL OF ITS PERSONNEL AND AUTHORIZED USERS TO COMPLY WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, RESTRICTIONS AND AGREEMENTS SET FORTH IN THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO ANY TERM OR CONDITION HEREIN, CLIENT MUST NOT ACCESS OR USE ANY PREPPROOF SERVICES. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CLIENT REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL IS 18 YEARS OF AGE OR OLDER AND HAS ALL RIGHT, POWER AND AUTHORITY NECESSARY TO BIND CLIENT TO THIS AGREEMENT.
STRUCTURE OF AGREEMENT
Each Order Form is a Separate Agreement. Each order form that sets forth the Services to be performed or Subscription Service to be provided and signed or agreed to (whether by clickthrough process or otherwise) by a representatives of Client (“Order Form”) shall be deemed to incorporate by reference all of the terms and conditions of this Agreement and shall constitute a separate and binding contract between PrepProof and Client.
Precedence. In the event there are any conflicts or any inconsistencies between the terms and conditions of any Order Form and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control, unless the Order Form specifically states that the Order Form shall control and cites the term or condition of this Agreement to be overridden.
SUBSCRIPTION SERVICE AND SERVICES
Subscription Service. Subject to the terms and conditions herein, PrepProof agrees to provide access to PrepProof’s online business application described in the applicable Order Form (“Subscription Service”) during the term of the applicable Order Form. For clarity, Subscription Service does not include Services.
Services. Subject to the terms and conditions herein, PrepProof agrees to perform the professional services described in the applicable Order Form (“Professional Services”) during the term of the applicable Order Form. For clarity, Professional Services does not include the Subscription Service. The Subscription Service and Professional Services are, collectively, the “PrepProof Services”.
Subscription Service Updates. Client acknowledges that PrepProof reserves the right at any time, or from time to time, with or without notice to update the content, functionality, or user interface of the Subscription Service at PrepProof’s sole discretion.
Use Restrictions. Client may use PrepProof Services and PrepProof App (defined below) (collectively, the “PrepProof Products”) for its own internal business purposes, and for no other purpose. Client shall not use PrepProof Products for any purposes beyond the scope of the access granted in this Agreement. Without limiting the generality of the foregoing, Client shall not at any time, directly or indirectly, and shall not permit any Authorized User (defined below) or any other third party to:
(i) copy, modify, or create derivative works of PrepProof Products, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available PrepProof Products to any third party expect as expressly authorized herein;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of PrepProof Products, in whole or in part;
(iv) remove any proprietary notices from PrepProof Products;
(v) use PrepProof Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right; or
(vi) use PrepProof Products to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations.