Terms of Service (“TOS”)
“Account Information” means billing information, contact information, payment information and such other information defined as “Account Information” in the Customer Portal.
“Anniversary Billing Date” means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is May 20, 2012, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month (i.e. if the Anniversary Billing Date is the 30th, then in February, the Anniversary Billing Date shall be either February 28 or 29, depending on the year).
“Customer” means the individual or entity who agrees to the terms of the TOS by clicking or checking the box presented with the TOS; OR checking the “I UNDERSTAND” check box and requesting to be registered for the Services.
“Customer Content” means all data and information, including, without limitation, data text and documents uploaded or transferred in connection with the Services by Customer or its Affiliates.
“Customer End User” means a Third Party which is an end user of a Customer Offering.
“Customer Portal” means the portal at https://proqualverified.net (or such other location as TOS may designate from time to time).
“Effective Date” means the date on which the Customer accepts the TOS by clicking or checking the box presented with the TOS, installing and/or using the Services; OR clicking the SUBMIT button and requesting to be enrolled in the Services.
“Feedback” means any and all suggestion, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to ProQual either directly or indirectly via a ProQual-controlled web site.
“Initial Term” means the period commencing on the Effective Date until the next Anniversary Billing Date, unless terminated as provided in Section 15.
“Order” means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the Customer Portal or such other method designated by ProQual from time to time. Orders do not apply to Third Party Services.
“PII” means information that can be used to identify, contact, or locate a single person or that can be used with other sources to uniquely identify a single individual.
“PIE” means information that can be used to identify, contact, or locate an entity or that can be used with other sources to uniquely identify an entity.
“Privacy Agreement” means the terms governing the use of PII and PIE which is located at www.proqualverified.com/about-privacy (or such other location as ProQual may designate from time to time).
“Renewal Term” means the period commencing after the last day of the Initial Term or the Renewal Term and extending until the next Anniversary Billing Date unless terminated as provided in Section 15.
“Services” has the meaning set forth in the recitals.
“Site” means www.proqualverified.com (or such other location as ProQual may designate from time to time).
“ProQual” has the meaning set forth in the recitals.
“Term” means the term as set forth in Section 15.
“Third Party” means an individual or an entity which is not a Customer, ProQual, an Affiliate of ProQual or an Affiliate of Customer.
”TOS” means the terms of service for the Services.
2. PROQUAL’S OBLIGATIONS.
2.1 Provision of Services. Contingent on ProQual’s acceptance of an Order and subject to the terms of the TOS, ProQual agrees to use reasonable commercial efforts to provide the Services subject to the terms of Service Agreements. ProQual retains the right to reject the request for Services by any individual or entity in its sole discretion. ProQual may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer.
2.2 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this TOS.
2.3 Verification of Data. Customer acknowledges ProQual will be contacting any person, entity and/or reference Customer provides to ProQual to verify the information provided by Customer on Customer End User’s behalf as true and accurate.
3. PRIVACY. The collection and use of PII is governed by the Privacy Agreement. The Privacy Agreement can be found at http://proqualverified.com/about-privacy/
4. USE OF AND ACCESS TO THE SERVICES.
4.1 Ordering and Modification of Services. Customer may order Services and all upgrades to such Services through the Customer Portal or as otherwise designated by ProQual. ProQual may accept such Orders in its discretion and shall give notice to Customer of acceptance of such Order through the Customer Portal.
5.1 Fees: All fees for the provision of Services are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date.
5.2 Payment Methods: The payment shall be made by the credit card maintained on file with ProQual or such other method as approved by ProQual. For methods such as credit card, the payment of fees shall be automatic on the due date.
5.3 Taxes: All prices and fees specified in or referred to in this TOS are stated exclusive of any tax, including withholding tax, sales, use, value added, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for Services made under this TOS, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide ProQual with an official receipt for any such taxes withheld and must notify ProQual prior to payment that withholding tax is required to be paid and Customer shall pay to ProQual any additional amount to ensure that ProQual receives the full amount of the invoice. If ProQual has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides ProQual with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
5.4 Refunds & Disputes: All fees paid for Services to ProQual are non-refundable. If the Customer believes that the bills are in error, the Customer’s sole and exclusive remedy is to seek credits through the Customer Portal by opening an accounting ticket to give notice to ProQual within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with Section 5.4 within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to ProQual and any such chargeback will result in an additional payment to ProQual of up to $500 which is a reasonable estimate of ProQual’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by ProQual in enforcing collection of fees. Additional pricing policy information can be found here.
6. OWNERSHIP OF SITE: Customer hereby acknowledges and agrees that ProQual (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by ProQual, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and ProQual, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by ProQual or its licensors.
7. SECURITY: ProQual agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. ProQual will take commercially reasonable steps to maintain the confidentiality of the Customer Content in performing data backup services.
8. INDEMNIFICATION BY CUSTOMER: Customer hereby agrees to indemnify, defend and hold harmless ProQual and its parents, Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, ProQual and each of the ProQual Parties an “Indemnified Party” (collectively, the “ProQual Parties”) , from and against any and all liability (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged claim (“Claim”) arising out of: (a) Customer’s use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this TOS; (c) any breach or alleged breach by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by ProQual prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of ProQual or any ProQual Party without the prior written consent of ProQual and/or the applicable ProQual Party(s). Customer and Customer’s counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the ProQual or the ProQual Parties in the defense or settlement of any such matter.
9. DISCLAIMER OF WARRANTIES: EXCEPT AS REQUIRED BY LAW CUSTOMER’S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY PROQUAL “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. PROQUAL; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS
FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR
ITS AND CUSTOMER END USERS’ USE OF THE SERVICES.
10. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL PROQUAL BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF PROQUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW PROQUAL WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, PROQUAL IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, PROQUAL’S TOTAL CUMULATIVE LIABILITY
TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO PROQUAL’S LIABILITY.
12. ALLOCATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE TOS AND IN THE OTHER PROVISIONS OF THIS TOS AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH PROQUAL WOULD NOT HAVE ENTERED INTO THIS TOS. PROQUAL’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
13. ARBITRATION: Any controversy or claim arising from the Services or related to this TOS or breach thereof shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The number of arbitrators shall be one, and such arbitrator shall be an independent third party mutually agreeable to the Parties. The venue and jurisdiction requirements set forth below apply to any arbitration proceedings. Arbitration shall be final and binding upon the parties and shall be the exclusive remedy for all claims covered by this arbitration provision. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this TOS, to enforce an arbitration award or to obtain temporary injunctive relief pending a judgment based of the arbitration award. Notwithstanding the provisions of this Section 13, Customer acknowledges that Customer’s breach of Sections 4.2 or violation of any terms and conditions of the TOS would cause irreparable injury to ProQual and agrees that in the event of any such breach, ProQual shall be entitled to seek emporary and preliminary injunctive relief, to the extent allowed under the rules of the American Arbitration Association, without the necessity of proving actual damages or posting any bond or other security.
14. SUSPENSION. ProQual may suspend provision of Services to Customer without liability if: (i) ProQual reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the TOS or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer not cooperate with ProQual’s investigation of any suspected violation of the TOS or any applicable law, court order, rule or regulation in any jurisdiction; (iii) ProQual reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer’s consent or in violation of the TOS;(iv) ProQual reasonably believes that suspension of the Services is necessary to protect ProQual’s network or other ProQual customers; (v) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other ProQual customer, (vi) ProQual reasonably believes that the use of the Services by Customer may subject ProQual, its Affiliates, or any Third Party to liability; or (vii) suspension is required by law, statute, regulation,rule or court order. ProQual will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless ProQual determines, in ProQual’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect ProQual or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of the Flow-Through Provision shall be treated the same as a violation of the TOS for this provision. If ProQual suspends the Customer’s right to access or use any portion or all of the Service: a. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension; b. Customer remains responsible for any applicable fees and charges for any Services to which Customer has continued to have access, and ProQual shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
15.1 Term. The term shall commence on the Effective Date and is automatically renewed each Anniversary Billing Date until terminated as provided below.
15.2 Termination for Breach. ProQual may terminate the TOS immediately upon notice provided through the Customer Portal if: (i) ProQual discovers that the information Customer provided to ProQual about Customer’s proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the TOS, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the TOS, install or accept Services on behalf of the person represented to be the Customer; (iii)Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 5 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this TOS and fails to remedy any violation within 5 days of ProQual’s written notice; (v) Customer or Customer End User violates the TOS; (vi) Customer’s account has been suspended for 30 days or more; (vii) Customer has multiple violations of the TOS; or (viii) Customer fails to comply with any other provision of this TOS and does not remedy the failure within 30 days of ProQual notice to Customer describing the failure. ProQual will give Customer written notice of termination under this paragraph unless ProQual determines, in ProQual’s reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect ProQual or its other customers from operational, security, or other risks. A breach of the Flow-Through Provision shall be deemed to be a breach of the TOS.
15.3 Access to Customer Content. The deletion of Customer Content is automatic upon termination or expiration of the TOS. Consequently, unless ProQual determines otherwise, Customer will not have access to Customer Content, and ProQual may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this TOS.
16. THIRD PARTIES. Unless otherwise agreed, ProQual will provide support only to Customer, not to Customer End User, Customer Affiliate, Third Party or Third Party Affiliate to whom Customer provides access to use the Services or the Customer Offering. There are no Third Party beneficiaries to the Agreement, meaning that Third Parties do not have any rights against either ProQual or Customer under the TOS.
17.1 Changes to the TOS. As noted in the recitals, ProQual may modify the terms and conditions of this TOS as provided below. ProQual will notify its Customers through the Customer Portal of any such modifications and all modifications shall be effective upon their posting on the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such modifications on a frequent basis If Customer continues to use the Services
following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the TOS must be approved in writing by ProQual.
17.2 Notices. Customer communications regarding the Services should be sent through the Customer Portal except for the following types of notices: for breach, indemnification, or other non-routine legal matters, Customer should send it by electronic mail and first-class United States mail to:
ProQual,division of Pantera Global Technologies, Inc..
C/O Legal Department
1701 N. Collins, Suite 2300
Richardson, TX 75080
ProQual’s communications regarding the Services and legal notices will be sent through the Customer Portal. Notices are deemed received as of the time delivered. Notices must be given in the English language.
17.3 Assignment/Subcontractors. Customer may not assign the TOS or Customer rights and/or delegate Customer obligations under the TOS without ProQual’s prior written consent. Any assignment or transfer of the TOS by Customer in violation of this section will be void. ProQual may assign the TOS to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of ProQual to such entity and such entity agrees in writing to be bound by the terms of the TOS. This TOS will be binding on and inure to the benefit of Customer’s and ProQual’s respective permitted successors and permitted assigns. However, ProQual may use Third Parties or Affiliates to provide all or part of the Services. This provision does not apply to the Third Party Services which are governed by separate agreements.
17.4 Force Majeure. Except for its rights in Sections 15 or 16, neither ProQual nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry; provided however if the force majeure event continues beyond thirty (30) days, the performing party may terminate the TOS.
17.5 Feedback. ProQual shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to ProQual all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide ProQual with any assistance ProQual may require to document, perfect, and maintain ProQual’s rights in the Feedback.
17.6 Governing Law, Lawsuits. The TOS is governed by the laws of the State of Texas, exclusive of any Texas choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The application to the TOS of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the TOS shall be in the state or federal courts in Collin County, Texas, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
17.7 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a Third Party.
17.8 No Waiver. ProQual’s failure to exercise or delay in exercising any of its rights under this TOS will not constitute a waiver, forfeiture, or modification of such rights. ProQual’s waiver of any right under this TOS will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. ProQual’s waiver of any right under this TOS must be in writing.
17.9 Survival. All provisions that by their nature are intended to survive expiration or termination of the TOS shall survive expiration or termination of the TOS.
17.10 Severability. If any part of this TOS is found unenforceable by a court or other tribunal, the rest of the TOS will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this TOS.
17.11 Language. The official language of the TOS shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.