Praos Health Terms of Service
Effective May 1, 2019, for current users, and upon acceptance for new users.
Welcome, the websites www.praoshealth.com and online services (the “website”) and mobile applications (“mobile Apps., or “mobile.” or “App”), together known as the “Praos Platform” are owned and operated by Praos Health Inc., its predecessors or successors in interest, and its Affiliates (“Praos Health”, “we”, or “our” or “us”), a career and credential management service for healthcare nursing professionals (the “Services”).
This Services Agreement (“Agreement”) is a contract between you (“you” or “User”) and Praos Health. By using the Praos Platform, you agree that you have read, agree to, and accept all of the terms and conditions contained in this Agreement, whether or not you are a User registered directly on the Praos Platform or via an entity including, but not limited to, healthcare service providers, staffing service providers, professional association, or educational institution, together known as “Organization(s)”, using the Praos Platform to offer you the Services. This Agreement incorporates the Praos Health Privacy Policy and any other Specific Terms of Service as applicable.
Acknowledgment And Acceptance Of The Services Agreement
Praos Health reserves the right to change this Agreement, and add additional terms at any time effective upon the date posted on this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Praos Platform after any such changes are made to this Agreement shall constitute your consent to such changes. Praos Health does not assume any obligation to notify User of any changes to this Agreement, or the creation or modification of any additional terms.
YOU UNDERSTAND THAT BY USING THE PRAOS PLATFORM YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE PRAOS PLATFORM.
1. Use Of The Services
1.1 Eligibility
You may only use the Praos Platform if you are at least 18 years of age and able to form legally binding contracts under applicable law. If you do not qualify, you may not use the Praos Platform.
1.2 Functionality
In order to access the Service, you will have to create an account identified by your email address and password. You consent to our using the email address to send you communications or data regarding Praos Health or the Praos Platform, including but not limited to: (a) notices about your use of the Praos Platform and your Services, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding Praos Health’s products and services, via electronic mail. We give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.
By connecting to Praos Health using a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You acknowledge and agree that Praos Health may use third party vendors and/or partners to provide the Services (or any portion of the Services) to you, and share personal information with such third parties as necessary in order to provide the Services to you.
By using the Services, you acknowledge that we do not have control over the quality, accuracy, completeness, veracity or legality of content provided by third parties.
You give us permission to store your uploaded professional licenses, certifications, education, resumé or CV and other personal data (‘Information’) to provide the Services and to check your professional licenses, and professional certifications using primary verification sources. As part of your use of the Praos Platform, you agree to consent to these checks. Praos Health will send alerts and reminders for any upcoming license or certification renewals via the mobile app, text and/or email, and website based on your profile settings. It is your responsibility to maintain your licenses and certifications and update your profile settings.
You consent to share your Information when you apply for a job posted by an Organization and/or to the Organization through which you registered for the Services. In addition, you acknowledge that we do not have control over the integrity, responsibility or actions of Organizations.
1.3 Account Creation and Suspension
When creating your account and providing Information to access the Services through your account, you represent and warrant that you will provide accurate and complete Information and consent to Praos Health verifying such Information.
You may control your Information and how you interact with the Services by changing the settings in your Settings page. You are solely responsible for the activity that occurs under your account. All Users must keep their account passwords secure. You must notify Praos Health immediately of any breach of security or unauthorized use of your account. Praos Health will not be liable for any losses caused by any unauthorized use of your account.
Users have no ownership rights in their accounts and in the event that your account is terminated by you, your organization, or us, the contents of your account may not be available. Praos Health reserves the right to delete a User Account in the event of any inactivity. You may terminate your account at any time by contacting Praos Health using the Contact Us section of the website.
If you access Praos Health through a social networking site, you agree that Praos Health can access, store, and make available on the Services, any information and data that you provide in your applicable social networking site account such that the same information is available in your Praos Health account. You agree that we are not liable for any personal information that is made available to us in violation of your privacy settings with the applicable social networking site.
Praos Health may suspend or terminate your account and/or your access to the Services, or any portion of the Services at any time without notice to you, if we believe that you have violated the terms of this Agreement. Upon any such termination, all the provisions of this Agreement shall continue to survive except for any provisions that grant you access to any of the Services. You agree that we will have no liability to you for any termination or suspension of your access to the Services.
1.4 General Rules for Use of the Praos Platform and Services
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Praos Platform in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Praos Health servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (iii) transmitting spam, chain letters, or other unsolicited communications; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information from the Services, except as expressly permitted by certain features of the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xiii) disclosing or sharing login credentials; (xiv) reverse engineering or decompiling any parts of the Services; (xv) frame or link to any information or content on the Services; (xvi) post or submit any inaccurate, incomplete, or false biographical information or another person’s information; or (xvi) post or submit any material that is unlawful, illegal, defamatory, offensive, discriminatory, threatening, or obscene as determined by Praos Health.
We may, without prior notice, change any aspect of the Services; stop providing the Services or features of the Services, or create usage limits for the Services (for free and paid products). We may permanently or temporarily limit, condition, terminate or suspend your access to the Services or any features thereof, without notice and liability for any reason, including if in our sole determination you breach or violate any provision of this Agreement, commit fraud or other abuse using the Services, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Praos Platform Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Praos Health shall have no liability for your interactions with other Users, or for any User’s action or inaction. Praos Health shall have no obligation to you to enforce this Agreement against any other User.
1.5 Support
If you have questions about the Services or your Account, please email us at support@praoshealth.com or call the numbers listed in the Contact Us section of our website.
2. User Content And Users
User is solely responsible for the contents of its Information and its transmissions through the Praos Platform, and the Platform simply acts as a passive conduit for User to send and receive information of User’s own choosing. However, Praos Health reserves the right to take any action it deems necessary or appropriate in its sole discretion if it believes User or User’s information may create liability for Praos Health, compromise or disrupt the Praos Platform or other Users, or may cause Praos Health to lose (in whole or in part) the services of Praos Health’s ISPs or other suppliers. User’s use of the Praos Platform is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). User agrees: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; (4) to comply with all regulations, policies and procedures of networks connected to the Service; (5) not to use the Service to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; and (6) not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. User’s conduct is subject to Internet regulations, policies and procedures. User will not use or reference the Praos Platform for chain letters, junk fax or junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process, and will not attempt to gain unauthorized access to other computer systems. User shall not interfere with another User’s use and enjoyment of the Praos Platform or another entity’s use and enjoyment of similar services.
Praos Health reserves the right to disclose User Content and any Information related to the provider of such User Content, to third parties in connection with the operation and provision of the Services, to enforce the terms of any agreement that we have with you, to comply with legal obligations and requests from governmental authorities, law enforcement agencies, court orders, subpoenas, etc., and to protect the interests of Praos Health where necessary. For the avoidance of doubt, you agree that we have the right to disclose your identity to a third party who is claiming that any User Content or Information you posted, provided or uploaded is fraudulent, false, or misleading or constitutes a violation of the law, or a violation of their intellectual property or ownership rights, or of their right to privacy.
3. Additional Terms That Apply To Job Applicants
With respect to Users, Praos Health merely provides the platform for Users and Organizations to communicate and share Information. Users understand and agree that the job description, requirements, required documentation, employment screening, terms, pay rate, work hours, service dates, will be established by the Organization and not by Praos Health. User acknowledges that Praos Health does not, in any way, supervise, direct, or control Organizations or Users. Praos Health does not set User contract terms, fees, rates, work hours, work schedules, or location of work. Praos Health merely provides the ability for accessing resources and work aids provided by Organization and made available to the User. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Praos Health and you.
4. Required Notifications
User will notify Praos Health by sending an email or written communication to the Contact Us section on the website or directly to their Organization of any change in name within three days of such change for further verifcation with licensing boards.
5. Promotions And Referral Programs
Praos Health, at its sole discretion, may make available promotional codes or other incentives with different features to any User or prospective User. Praos Health may offer you with incentives at its discretion for referring new Users or as an appreciation for a User’s continued loyalty to the Site. These promotions are subject to change and are given at Praos Health’s sole discretion.
6. Mobile Software
6.1 Mobile Software from the Apple App Store
The following applies to any Mobile Software you acquire from the Apple App Store or its successors (“Apple App Store-Sourced Software”) as operated by Apple Inc. or one of its affiliates (“Apple”): To the extent the other terms and conditions of the Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the Apple App-Store Software. You acknowledge and agree that this Agreement is solely between you and Praos Health, not Apple, and that Apple has no responsibility for the Apple App-Store Software or content thereof. Your use of the Apple App-Store Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App-Store Software. In the event of any failure of the Apple App-Store Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App-Store Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App-Store Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Praos Health as provider of the software. You and Praos Health acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple App-Store Software or your possession and/or use of the Apple App-Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App-Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Praos Health as provider of the Apple App-Store Software. You acknowledge that, in the event of any third party claim that the Apple App-Store Software or your possession and use of that Apple App-Store Software infringes that third party’s intellectual property rights, Praos Health, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Praos Health acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the Apple App-Store Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple App-Store Software against you as a third-party beneficiary thereof.
6.2 Mobile Software from Google Play.
If you acquire any Mobile Software from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”), then to the extent of any conflict between (a) the Google Play Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and (b) the other terms and conditions in this Agreement, the Google Play Terms shall apply with respect to your use of any Mobile Software that you acquire from Google Play. Praos Health and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Praos Health or you (or any other user) under this Agreement or the Google Play Terms.
7. Confidentiality
Confidential Information” means any and all information related to Praos Health’s or any Organization’s business (including procedures, patient information, protected data, operational information trade secret, technical information, business forecasts and strategies, marketing plans, vendor and supplies list, personnel information, financial data, and proprietary information of third parties) that Praos Health and/or the Organization considers to be confidential or proprietary or Praos Health has a duty to treat as confidential.
7.1 Use and Disclosure
From time to time, you may be given access to confidential information in the course of using the Praos Platform that you receive from Organizations. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Praos Health’s or the Organization’s express prior written consent on a case-by-case basis (d) refrain from disclosing or in any way reveal or disseminate any information pertaining to Organization or its operating methods and procedures that comes to your attention (e) under no circumstances you will remove copies or documents from the premises of the Organization (f) abide and affirm to the HIPAA confidentiality agreement, privacy policy of Organization, and any additional policies provided by the Organization. You will not disclose or in any way reveal or disseminate any PROTECTED HEALTH INFORMATION (PHI) in accordance to the Organization’s policy and Praos Health privacy policy.
7.2 Standard of Care
You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
7.3 Removal; Return
Upon Praos Health’s or Organization’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Praos Health or, if so directed by Praos Health, destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Praos Health in writing that you have fully complied with these obligations.
You understand and shall be responsible for any direct or consequential damages resulting from any violation of this Confidentiality. This Confidentiality shall remain in effect even after the use of the Praos Platform has been suspended or terminated or Organization use of Praos Platform has been suspended or terminated.
8. Indemnification
To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold harmless Praos Health and its subsidiaries, and their respective directors, officers, board members, employees, agents, successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all legal fees and expenses) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement and any other agreement that you have with Praos Health, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party rights, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including, without limitation, your violation of the US Fair Credit Reporting Act and any applicable data protection laws; (v) any claims or damages that arise as a result of your User Content; (vi) any other party’s access and use of the Services with your account or log-in information; and/or (vii) your intentional or willful misconduct, or negligence.
9. Warranty Disclaimer
The Application is provided “as is,” as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). We disclaim all and make no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party. Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to the extent, if any, some or all of the above limitation may not apply to you.
10. Limitation Of Liability
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, IN NO EVENT SHALL PRAOS HEALTH, ITS SUBSIDIARIES, AND THEIR RESPECTIVE BOARD MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSOR AND ASSIGNS, BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE FOR ANY (I) DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES; (II), LOSS OF PROFITS, GOODWILL, USE, DATA THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL PRAOS HEALTH BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRAOS HEALTH ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SYSTEMS OR SERVERS AND/OR ANY PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (VII) USER CONTENT OR (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY.
(C) IN NO EVENT SHALL PRAOS HEALTH, ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SUCCESSORS AND ASSIGNS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO PRAOS HEALTH IN THE 1 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OR USD $10, WHICHEVER IS LESSER.
(D) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY OR ANY OTHER BASIS AND EVEN IF PRAOS HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Security
Unfortunately, the transmission of information over the Internet is not completely secure and we cannot, therefore, guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
12. Termination By Praos Health
Praos Health together with your Organization reserves the right to terminate your access to the Praos Platform if you have not used the Service in the previous twelve calendar months or if you are in material breach of the agreement.
13. General Provisions
13.1 Law.
This Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the State of Texas regardless of your country of origin or where you access Praos Health, and notwithstanding any conflict of law principles.
13.2 Mandatory Binding Arbitration and Class Action Waiver.
Praos Health and you mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C Sections 1-16) and shall apply to any and all claims arising out of or relating to this Contract, the termination of this Contract, and all other aspects of the User’s relationship with Praos Health, past, present, or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similarly subject matters, and all other federal or state legal claims arising out of or relating to User’s relationship or termination of that relationship with Praos Health. However, this Agreement does not apply to litigation between you and Praos Health pending in a state or federal court as of the date of your receipt of this Agreement, nor does it apply to any claim that may be arbitrated as provided by an Act of Congress or lawful, enforceable Executive Order.
(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitation period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by User must be delivered to Dominique Stafford at legal@praoshealth.com.
(b) Class Action Waiver. Praos Health and User mutually agree that by entering into this agreement to arbitrate, both waiver their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement of the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is enforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, representative or private attorney general action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, representative and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
14. Intellectual Property Rights
Subject to and conditioned on compliance with the Terms of Service, Praos Health grants you a limited license to access and, if you have created an Account, to use the Praos Platform. You must not access (or attempt to access) the Praos Platform by any means other than the interface provided, and you will not use information from the Praos Platform for any purposes other than the purposes for which it was made available. You agree not to use the Praos Platform for offering any goods or services other than those you are contracted by the Customer. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Praos Platform in any way for any public or commercial purpose without Praos Health’s prior written consent. You must not use any content of the Praos Platform on any other website or in a networked computer environment for any purpose except your own viewing without Praos Health’s prior written consent. You must not frame or link to the Praos Platform except as permitted in writing by Praos Health. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Praos Platform unless expressly permitted by applicable law. You will not access the Praos Platform in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Praos Platform. Praos Health and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Praos Platform. The Praos Health logos and names are trademarks of Praos Health and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Praos Platform may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of Praos Health’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
14.1 User Content License
When you post user content on the Praos Platform or provide Praos Health with user content, you represent and warrant that you have the right, power, and authority to post that user content and grant the licenses specified below. You further represent and warrant that by posting or providing such user content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your user content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such user content and that Praos Health may exercise the rights to your user content granted under the Terms of Service without any liability or obligation for any payment.
You retain all ownership rights in any user content you post on Praos Health. To the extent permitted by applicable law, you also grant to Praos Health and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such user content and your name, voice, and/or likeness as contained in your user content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Praos Platform and Praos Health’s (and our successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Praos Platform (and derivative works thereof) in any media formats and through any media channels. You also hereby grant Praos Health a non-exclusive license to access your user content through the Praos Platform and to use, reproduce, distribute, display, and perform such user content to the extent permitted through the normal functionality of the Praos Platform and subject to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law.
Notwithstanding the foregoing paragraph, Praos Health will only use or disclose user content you post to any non-public area of the Praos Platform to the extent necessary to provide Services to you as further described in our Privacy Policy.
The licenses to user content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your profile from the Praos Platform, except that you grant Praos Health and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Praos Platform, including without limitation about how to improve the Praos Platform (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Praos Health under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, Praos Health does not waive any rights to use similar or related ideas known or developed by Praos Health or obtained from sources other than you.
15. Entire Agreement
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Praos Health relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Praos Health drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Praos Health because of the authorship of any provision of the Terms of Service.
16. Compliance
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Praos Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
17. Modifications
No modification or amendment to the Terms of Service will be binding upon Praos Health unless in a written instrument signed by a duly authorized representative of Praos Health. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles.
18. No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
19. Assignability
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Praos Health’s prior written consent in the form of a written instrument signed by a duly authorized representative of Praos Health (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). Praos Health may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
20. Severability
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
STANDARD TERMS
CAREFULLY READ THESE PRAOS STANDARD TERMS. BY EXECUTING OR ACKNOWLEDGING RECEIPT OF THESE STANDARD TERMS, CLICKING “ACCEPT” OR “AGREE” (OR SIMILAR LANGUAGE) TO THE STANDARD TERMS WHEN MADE AVAILBLE TO YOU, OR ACCESSING AND USING THE PRAOS SERVICES, YOU AGREE TO BE BOUND BY THESE STANDARD TERMS AND REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THESE STANDARD TERMS ON BEHALF OF YOUR COMPANY OR OTHER ORGANIZATION RECEIVING THE PRAOS SERVICES. IF YOU DO NOT AGREE TO THESE STANDARD TERMS, DO NOT ACCEPT, AGREE TO, ACCESS, OR OTHERWISE USE THE PRAOS SERVICES.
These Standard Terms, together with the Privacy Policy located at www.praoshealth.com/privacy-policy/, govern your access to and use of www.praoshealth.com and your use of the Praos Services. These Standard Terms are by and between Praos Health, Inc. ("Praos"), and your organization or other legal entity (“you" or “your”) on whose behalf you are entering these Standard Terms.
- Definitions. Terms not otherwise defined herein shall have the following meanings:
“Access Credentials” means the user identification name and password and/or other access keys or controls for the Services.
“Authorized Users” means individuals authorized by you to use the Services solely on your behalf, which may include, employees, temporary employees, contractors, or staffing candidates, but no other third parties without Praos’s prior written consent.
“Authorized Recipients” are a party’s and its affiliates’ officers, employees, agents and consultants who require access to the Confidential Information for the purpose set forth in these Standard Terms and who are bound by confidentiality obligations at least as stringent as those set forth herein.
“Confidential Information” refers to any proprietary information, software, personal information, data or know-how of the Discloser that is disclosed under these Standard Terms which is marked as confidential, or which a reasonable person would understand to be confidential based on the context of the disclosure or the nature of the information. For purposes of clarification, the Services and Documentation shall be Praos’s Confidential Information and Your Data shall be your Confidential Information except to the extent that it has been anonymized and aggregated by Praos and is no longer be attributable to you or any Authorized User. Confidential Information does not include information which the Recipient may demonstrate through written evidence: (i) was already known to the Recipient prior to the time that it was disclosed by the Discloser; (ii) is or has entered the public domain through no breach of these Standard Terms by Recipient; (iii) has rightfully been received by Recipient from a third party without any breach of these Standard Terms; (iv) was approved for release by the written consent of the Discloser; (v) was independently developed by the Recipient without use of the Discloser’s Confidential Information; or (vi) was required to be disclosed pursuant to the order of a court or governmental agency of competent jurisdiction provided that the Discloser has, if permitted by law, been given reasonable notice of the order and the opportunity to contest the disclosure and any such disclosure is limited strictly to the Confidential Information which is the subject of such order.
“Documentation” means user manuals, online help files, technical manuals, and other materials published by Praos which describe the Services and its uses, features, specifications, and/or technical requirements.
“Order” means the Praos Services that you subscribe to or purchase from Praos.
“Processed Data” means all information that is collected by Praos, or to which Praos has access that relates to you and your Authorized Users’ use of the Services. Processed Data includes, but is not limited to, Your Data and the results generated through use of the Services. Except in relation to the provision of the Services to you, any use of Processed Data will be masked or aggregated by Praos so that you and your Authorized Users are not identified as the original provider of such data.
“Professional Services” means implementation, configuration, integration, training, advisory, and other professional services related to the Services that are specified in an Order or statement of work.
“Praos Services” means the Services, Professional Services, and any other online service provided or controlled by Praos for use with the Services.
“Services” means the subscription services, content, and products provided to you pursuant to an Order and these Standard Terms.
“Term” means the period of authorized access and use of Services as set forth in an Order.
“Your Data” means any information transmitted to the Services by your Authorized Users, including information necessary to set-up your account and for the continued delivery of Praos Services.
- Right to Access and Use of Services. Praos hereby grants to you and your Authorized Users, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services for your internal business, subject to the terms of your Order and these Standard Terms. All rights not expressly granted to you are reserved to Praos.
- Usage Restrictions. In addition to any other limitations set forth in these Standard Terms and any Order, you agree not to (i) copy, download, modify or translate any software and/or database hosted as part of the Services in any manner not authorized by these Standard Terms; (ii) reverse engineer, decompile, or disassemble any software and/or database hosted as part of the Services, or otherwise attempt., to discover the underlying source code of the Services; (iii) tamper with, bypass or alter the security features of the Services or any of the hosted infrastructure, (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Services or any features or functionality of the Services to any person or entity other than your Authorized Users, or use the Services to run an outsourcing business; (v) use the Services in violation of any law, regulation, or rule including for any illegal, obscene or threatening purpose; and (vi) use the Services or its contents for purposes of competitive analysis, the development of a competing product or service, (vii) engage in practices of “screen scraping”, “database scraping”, or similar practices; or (viii) any purpose that is detrimental to Praos or to its commercial disadvantage.
- Your Obligations; Your Data.
4.1 Your Obligations. Only Authorized Users may use the Services, and solely for your internal business purposes. All use of the Services by your Authorized Users must comply with these Standard Terms. Your Authorized Users will be granted access to the Services through individual usernames and passwords. You will ensure that each Authorized User uses a unique username and password and that such usernames and passwords are not shared. You shall promptly notify Praos if any Authorized User’s username or password has been or is suspected of being lost, stolen or compromised. You shall implement appropriate security measures to safeguard your Access Credentials and you are solely responsible for all activity that occurs in connection with your Access Credentials. You must maintain all hardware, software and network connectivity needed to connect to the Services.
4.2 Your Data. These Standard Terms, together with the Praos Privacy Policy, govern Praos’s collection and usage of Your Data. You acknowledge and agree that Praos may use Your Data and Processed Data to provide the Services to you and as otherwise set forth in these Standard Terms. By submitting or transmitting Your Data to the Services, you represent and warrant that you are the owner of, and/or have all necessary right and permissions in Your Data to permit Praos to use the same in accordance with these Standard Terms without violating the rights of any third party. Praos shall implement and maintain appropriate technical, physical and organizational controls to secure the Services and to protect the security, confidentiality and integrity of Your Data.
- Ancillary Services.
5.1 Free Services. Praos may make Services available to you specifying that the Services are provided free of charge, on a trial basis, and/or to be used at your own risk (“Free Services”). Notwithstanding any other provision of these Standard Terms, you acknowledge and agree that: (i) Free Services are made available without any support, maintenance, warranty, commitment to availability, security, or accuracy, or other related obligation of any kind under these Standard Terms, unless otherwise required by applicable law; (ii) Free Services may not include or allow access to all features and functionality available to paying customers; (iii) Praos may terminate the use of a Free Services at any time, unless otherwise specified in writing, and Praos will not be liable for such termination; and (iv) data, information, and content submitted to a Free Services may be permanently lost, and Praos will not be liable for such loss.
5.2 Professional Services. Praos may agree to provide you Professional Services as set forth in an Order, subject to these Standard Terms.
5.3 Additional Terms. Additional terms and conditions (the “Additional Terms”) may apply to specific products, services or features made available by Praos on or through the Services. The Additional Terms (as applicable) are hereby incorporated by this reference into these Standard Terms. In the event of a conflict between any Additional Terms and these Standard Terms, the Additional Terms shall prevail.
- Fees; Payment; Renewals.
6.1 Fees and Payment. To the extent the Services or any portion thereof is made available for any fee, you will be required to select a payment plan in your Order and provide Praos information regarding your credit card or other accepted payment instrument. You represent and warrant to Praos that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Praos the amount that is specified in the payment plan (as well as any applicable taxes) in accordance with the terms of such plan and these Standard Terms. You hereby authorize Praos to bill your payment instrument in accordance with the terms of the applicable payment plan (as well as any applicable taxes) until you deactivate your account, and you further agree to pay any charges so incurred. If you dispute any charges, you must provide written notice to Praos within fourteen (14) days after the date that Praos charges you.
6.2 Price Changes. Praos reserves the right to change the cost of your subscription-based Services at any time upon thirty (30) days’ notice to you. If you disagree with the change in price for the subscription-based Services, then you may terminate such subscription-based Services by providing Praos written notice at any time prior to the change in price becoming effective. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount. If your subscription is annual, then the price change will become effective upon renewal.
6.3 Recurring Subscriptions. Unless otherwise stated in an Order, all subscription-based Services automatically renew according to the subscription plan (e.g., monthly or annually). You authorize Praos to maintain your account information and charge that account automatically upon the renewal of the Services you choose with no further action required by you. In the event that Praos is unable to charge your account as authorized by you when you enrolled in the Services, Praos, may, in its sole discretion: (i) bill you for the Services and suspend your access to the Services until payment is received, and/or (ii) seek to update your account information through third party sources (i.e., your bank or a payment processor) to continue charging your account as authorized by you.
6.4 No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods. You may cancel the Services at any time, but if you cancel your Services before the end of your Term, Praos will not refund any fees already paid to Praos for the cancelled Services. Following any cancellation, however, you will continue to have access to the Services through the end of the Term.
6.5 Invoices. Praos will charge you fees for the subscription-based Services in advance of providing such Services, as set forth in the applicable Order. Praos will charge you for Professional Service on a time and materials basis monthly in arrears unless otherwise set forth in the applicable Order. Payment is due within thirty (30) days of receipt of the applicable invoice. Praos may suspend Services or terminate these Standard Terms for non-payment by you as set forth in Section 7.2. You will pay a late fee equal to one-and-one-half percent (1.5%) per month or the maximum amount allowed by law, if less, on all past due amounts. You are also liable for all costs of collection incurred by Praos for past due sums, including without limitation, collection agency fees, reasonable attorneys’ fees and court costs.
6.6 Taxes and Other Charges. All amounts payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You shall be responsible for and shall pay all such taxes and indemnify Praos from any liability thereon. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Praos with legally sufficient tax exemption certificates for each taxing jurisdiction. If any deduction or withholding is required by law, you will notify Praos and will pay Praos any additional amounts necessary to ensure that the net amount of payment that Praos receives, after any deduction and withholding, equals the amount of payment Praos would have received if no deduction or withholding had been required. In no event shall you be responsible for any state or federal income taxes imposed on Praos’s income.
- Term & Termination; Suspension.
7.1 Term. You may terminate these Standard Terms at any time by providing at least thirty (30) days’ prior written notice of termination to Praos, provided however, that except as otherwise expressly stated in these Standard Terms, each Order will remain in effect for the duration of the term specified in the applicable Order for the Services, including any renewals.
7.2 Termination or Suspension by Praos. Praos may, at its option, terminate these Standard Terms for cause or suspend the Services if: (i) Praos reasonably believes that the Services are being used in violation of law or of these Standard Terms; (ii) your use of the Services interferes with the normal operations of the Services or other customer’s use of the same; (iii) there is an attack on the Services or your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which Praos reasonably believes suspension of the Services is necessary to protect the Praos network or Praos's other customers; (iv) your payment of any invoiced amount is overdue and you fail to pay the overdue amount within ten (10) days of Praos's written notice; (v) you breach any obligation relating to Praos's (or its suppliers’) intellectual property rights; or (vi) you materially fail to comply with any other provision of these Standard Terms and do not remedy that failure within fifteen (15) days of Praos's notice to you describing the failure in reasonable detail. Praos will endeavor to give you advance notice of pending suspension or termination, unless Praos determines, in Praos's reasonable commercial judgment, that a suspension on no or shorter notice is necessary to protect Praos, its customers, or others.
7.3 Effect of Termination. Termination of these Standard Terms will not relieve a party from any accrued payment obligations. Praos will not be liable to you for any claims or damages of any kind arising out of termination of these Standard Terms or suspension of Services in accordance with this Section 7.
- Confidentiality. Each party, as a recipient (“Recipient”), agrees to use the disclosing party’s (“Discloser”) Confidential Information solely for the purposes of performing its obligations or exercising its rights under these Standard Terms. Recipient will not disclose Discloser’s Confidential Information to any third party other than its Authorized Recipients. Recipient shall use commercially reasonable standards to protect the Confidential Information from disclosure using equal measures as it uses to protect its own Confidential Information of a similar nature. The obligations set forth in this Section 8 shall survive until three (3) years from the termination or expiration of these Standard Terms except with regard to trade secret information which shall be protected for the statutory period. Except as otherwise set forth in these Standard Terms each party shall use commercially reasonable efforts to return to destroy all Confidential Information in accordance with Section 8. Notwithstanding, Recipient will not be obligated to render unrecoverable Confidential Information of the Discloser that is contained in an archived computer system backup made in accordance with the Recipient’s legal and financial compliance obligations or security and disaster recovery procedure. Any such retained Confidential Information will remain subject to Section 8 (Confidentiality). Upon request, you agree to provide Praos with written certification by an authorized officer that all information from the Services has been removed and deleted from all of your hardware and storage devices.
- Intellectual Property Rights.
9.1 The Services are owned by Praos (and its licensors) and are protected by applicable intellectual property laws and regulations, including United States and international copyright laws. As between the parties hereto, Praos retains all right, title and interest in and to the Praos Services and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the Praos Services. Nothing herein shall operate to transfer or convey to you any rights in any Praos Services and/or software hosted as part of the Services. You agree to promptly notify Praos if you become aware of, or suspect any unauthorized, access, use or misuse of the Praos Services. Similarly, you retain all right, title and interest in and to Your Data. To the extent you provide Praos with any feedback, best practices, templates, systems, ideas, or technical improvement suggestions about the Praos Services (“Feedback”), you acknowledge and agree that Praos will be the owner of all such Feedback and may use and incorporate the Feedback into the Praos Services without compensation or attribution to you. Further, you acknowledge and agree that Praos shall have the right to anonymize and aggregate Processed Data and use it for Praos’s own purposes including to analyze trends, perform market research, to improve the Praos Services, and to develop other products and technologies and that Praos will own all such anonymized Processed Data.
9.2 All trademarks on or related to the Praos Services are the sole and exclusive property of Praos and are protected by US and international trademark laws. Nothing in these Standard Terms shall give you any right, title, or interest in or to Praos’s trademarks, nor give you any right to use Praos’s trademarks for any purpose without the prior written approval of Praos. You agree that you will do nothing inconsistent with Praos’s ownership of its trademarks and will not register, nor attempt to register, any trade name or trademark which, in whole or in part, incorporates or is confusingly similar to any of Praos’s trademarks.
- Representations and Warranties; Disclaimers; Reliance on Information.
10.1 Praos warrants that: (i) it has the necessary authority to enter into these Terms and Conditions, (ii) the Services and any Professional Services will substantially perform in accordance with applicable Documentation. You shall notify Praos of any non-compliance with the foregoing warranties within thirty (30) days after the event giving rise to the breach of warranty occurs. If Praos has not cured or corrected the failure within thirty (30) days following its receipt of such notice, then (a) with respect to the Services, you may terminate the applicable Order and Praos shall issue a refund of prepaid fees covering the terminated portion of the Services, and (b) with respect to any Professional Services, Praos shall, in its sole discretion, either (1) repair or re-perform such Professional Services (or the defective part) or (2) credit or refund the price of such non-performing Professional Services on a pro-rata basis. This Section 10.1 sets forth your exclusive rights and remedies and Praos’s sole liability in connection with this warranty for Praos Services.
10.2 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRAOS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. PRAOS DOES NOT REPRESENT THAT THE PRAOS SERVICES WILL BE COMPLETELY SECURE OR WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF, OR ACCESS TO, THE PRAOS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE PRAOS SERVICES WILL BE CORRECTED. PRAOS MAKES NO WARRANTY THAT (I) THE PRAOS SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTIONS, OR (II) THAT YOU WILL OBTAIN ANY SPECIFIC RESULTS OR PERFORMANCE.
10.3 The Services may include publicly available content and other content provided by third parties, including materials provided by other users, and third-party licensors, syndicators, aggregators, and/or reporting services. Praos is not responsible, or liable to you or any third party, for the content or accuracy of any such content or results. Praos does not warrant the accuracy, completeness, or usefulness of information provided by the Services. Any reliance you place on such information is strictly at your own risk. Praos disclaims all liability and responsibility arising from any reliance placed on such results by you, or by anyone who may be informed of such results.
- LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PRAOS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST DATA, RELATING TO THE PRAOS SERVICES OR THE PROVISION OR FAILURE TO PROVIDE THE PRAOS SERVICES OR SUPPORT THEREFOR, WHETHER OR NOT DUE TO PRAOS’S NEGLIGENCE. PRAOS’S TOTAL, AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING UNDER THIS AGREEMENT OR RELATED TO THE PRAOS SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR ACCESS TO THE PRAOS SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD BEFORE THE CLAIM AROSE. THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification.
12.1 By Praos. Praos will indemnify, defend and hold you harmless against any losses, damages, expenses or liabilities arising from claims that your use of the Praos Services infringes or misappropriates the intellectual property rights of a third party; provided that, Praos shall not be required to indemnify you to the extent that the claim was caused by your use of the Praos Services in violation of these Standard Terms or due to your unauthorized modifications or combinations of the Praos Services with and into other technologies or services without Praos’s written consent. If Praos is obligated to indemnify you under this Section 12 or if it reasonably believes it may have liability under this Section 12, Praos may, in addition to its other obligations hereunder: (i) obtain for you the right to continue using the Praos Services on a non-infringing basis; or (ii) modify the Praos Services so they are no longer infringing but of equivalent or better functionality, performance and interoperability. If neither of the foregoing options are commercially feasible, Praos may discontinue the provisioning of the Praos Services; provided that, it will issue you a pro rata refund or credit for the infringing Praos Services.
12.2 By You. You will indemnify, defend and hold Praos harmless against any losses, damages, expenses or liabilities arising from your or your Authorized User’s use of the Praos Services, including without limitation the violation of these Standard Terms, or any misappropriation or infringement of intellectual property rights or other claims arising from Your Data.
12.3 Process. A party seeking indemnity (an indemnified party) must give the indemnifying party prompt written notice of any claim for indemnification under this Section 12; provided that, the failure or delay in doing so will not excuse an indemnifying party of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. An indemnified party shall thereafter have the sole right to control the investigation, defense, and settlement of the claim at its sole cost and expense, provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party. An indemnified party may retain counsel to represent it on a non-controlling basis at its own cost and expense. An indemnified party shall reasonably cooperate with the indemnifying party in the investigation, trial and defense of such claim and any appeal arising therefrom at the indemnifying party’s expense.
- Third Party Products; Links.
13.1 Third Party Products. If you separately procure services, applications, or online content from a third party (“Third Party Products”) for use with the Services, any such use is subject to the end-user license or use agreement that you accept from or establishes with the third party. Third Party Products are not Services and, as between the parties, Praos has no liability with respect to your procurement or use of Third Party Products.
13.2 Links. If the Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Praos has no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to these Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
- Export Regulation. You agree to abide by and to conform to any and all export regulations in force during these Standard Terms that are applicable to you or the Services provided, including but not limited to any export rules and regulations of the United States of America. You understand that these regulations may prohibit the export or re-export of Documentation, and any information or technical data related to the Services. The Services and the underlying information and technology may not be accessed, downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
- Modifications. Praos reserves the right to change or modify the terms of these Standard Terms upon written notice to you. All such changes shall be effective immediately; provided, however, for existing customers, such modified Standard Terms, unless otherwise stated, shall be effective upon the earlier of (i) renewal of the subscription term for any subscription-based Services or (ii) thirty (30) days after posting with respect to all other Services. If any changes to these Standard Terms are unacceptable to You, You may terminate your Order by providing ten (10) days’ written notice of termination to Praos, delivered at any time within thirty (30) days of the effective date of the change. Continued use of the Services following the effective date of any changes constitutes your acceptance of the changes but does not affect the foregoing right of termination. For purpose of this Section 15, the posting of an updated copy of these Standard Terms to the Services shall constitute written notice of the change(s) to these Standard Terms.
- Miscellaneous.
16.1 Notices. Except as otherwise provided herein, notices under these Standard Terms by you to Praos will be deemed to be sufficiently given, effective on the date received, when delivered personally or by overnight express, or nationally recognized courier services, or three (3) business days after mailing when sent by certified or registered mail, postage prepaid to 6161 Oaktree Boulevard, Suite 130, Independence, Ohio 44131, or such other updated address provided to you from time to time. You consent to receive from Praos all communications including notices, agreements, legally required disclosures or other information in connection with the Services electronically. Praos may provide such notices by posting them on the Services or at the email address you provided to Praos. If you desire to withdraw your consent to receive notices electronically, you must discontinue your use of the Services.
16.2 The Order together with these Standard Terms and any other terms and conditions incorporated into these Standard Terms by reference constitutes the complete agreement between Praos and you regarding the Praos Services and supersedes all previous communications between the parties relating to the subject matter herein.
16.3 You may not assign these Standard Terms or the rights granted hereunder without Praos’s prior written consent. Praos’s failure to enforce any rights hereunder, irrespective of the length of time for which such failure continues, shall not constitute a waiver of those or any other rights.
16.4 These Standard Terms shall be governed by the laws of the State of Ohio without reference to its conflicts of law principles or your state or country of residence. Each party hereby consents to the exclusive personal jurisdiction and venue of the federal and state courts located in Cuyahoga County, State of Ohio, United States of America, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You agree you may only bring claims against Praos related to your use of the Services on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from application to these Standard Terms. You agree that any claim arising out of or related to these Standard Terms must be brought within one (1) year after the date it first accrued. If any action, suit, or legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Standard Terms, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
16.5 Each party acknowledges that a breach by a party of Section 8 (Confidentiality) or Section 9 (Intellectual Property Rights), may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Standard Terms to the contrary.
16.6 Portions of the Services may utilize or include third party software, open-source software, and other copyrighted material. Information for such third party or open-source software will be available via a link accessible within the Services. Use of such third party or open-source software is governed exclusively by their respective terms and not by these Standard Terms.
16.7 Except for payment obligations, neither party shall be held responsible for any delay or failure in its performance to the extent that such delay or failure is caused by causes beyond its reasonable control.
16.8 If any part of these Standard Terms is found unenforceable by a court of competent jurisdiction, such provision(s) will be ineffective to the extent of the court’s ruling and the remainder of these Standard Terms will remain in full force and effect. The waiver by a party of any breach of any provision of these Standard Terms will not operate or be construed as a waiver of any subsequent breach. The parties' relationship is that of independent contractors. Neither party is an agent for the other, nor does either party have the right to bind the other to any agreement with a third party. The captions used in these Standard Terms are for convenience only and are not binding.
