TERMS OF SERVICE

Online Subscription Agreement

Updated on June 1, 2013

IMPORTANT - READ CAREFULLY

The website located at http://ProcessEx.com (the "Site") is a copyrighted work belonging to Process Express, Inc.  Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement; to the extent such terms, guidelines, and rules conflict with this Terms of Service Online Subscription of Agreement, this Terms of Service Online Subscription of Agreement shall govern.

THIS IS A LEGAL AGREEMENT ("AGREEMENT") BETWEEN CUSTOMER AND PROCESS EXPRESS. BY ACCESSING AND/OR USING THE SERVICE(S), YOU ARE AGREEING, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE(S).

1.      DEFINITIONS. As used in this Agreement, the following terms shall apply:

1.1.                        Agreement means these Terms of Service as may be amended from time to time and any other documents incorporated by reference.

1.2.                        Confidential Information means any non-public information and/or materials provided by a Party under this Agreement to the other Party and reasonably understood to be confidential.

1.3.                        Customer means the legal entity or individual that enters into this Agreement.

1.4.                        Effective Date means the date of electronic acceptance of this Agreement by Customer.

1.5.                        IPR means Intellectual Property Rights which includes all trade secrets, copyrights, trademarks, patents and other intellectual property rights recognized by the laws of any country.

1.6.                        My Account means Customer's specific page within the Process Express website where Customer subscribes to the Services and provides Customer account information such as Registration Data and Payment Information. Customer may access Customer's My Account page at any time and update certain account information.

1.7.                        Party means individually Customer or Process Express and Parties means Customer and Process Express collectively.

1.8.                        Payment Information means limited Customer information related to billing and payment matters collected by Process Express during the online registration process. Such Payment Information will include a valid debit card or credit card number with available credit sufficient to pay the applicable Subscription Fees, an election of a preferred billing frequency, and other information as required by Process Express.

1.9.                        Privacy Policy means the Process Express Privacy Policy which can be viewed by clicking the "Privacy Policy" hypertext link located on the Process Express Online website.

1.10.                    Process Express means the entity set forth in Section 9 of this Agreement.

1.11.                    Registration Data means limited Customer information collected by Process Express during the online registration process.

1.12.                    Services means the generally available services, provided by Process Express to Customer, as subscribed to by Customer hereunder. The Services are described on Exhibit 1 and Process Express may update the Services at any time in order to maintain the effectiveness of the Services.

1.13.                    Subscription Fees means the fee for Customer's use of and access to the Services as subscribed to by Customer.

1.14.                    Term means the term of this Agreement commencing on the Effective Date and continuing until the expiration of all subscription period(s), including any renewal subscription period(s), for Services as stated on Customer's My Account page.

1.15.                    User Content means any and all information and content that a Customer submits to, or uses with, the Site or Services.

 

2.      Customer Rights and Restrictions

2.1.                        Customer Access and Use.  During the Term of this Agreement, and upon payment of all applicable Subscription Fees, Customer may access and use the Services pursuant to and in accordance with the provisions of this Agreement. Process Express will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by the Agreement. Thereafter, Customer shall be solely responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services. Customer may reassign Named Authorized Users, Devices and/or Server(s) without incurring additional fees provided that the number of such Named Authorized Users, Devices and/or Server(s) does not increase. Customer may inform its users, customers and employees that the Services are powered by Process Express. If Customer's broadband connection fails, the Services and some related voice service will also fail. The Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of the control of Process Express.

2.2.                        Customer User Content. Customer is solely responsible for its User Content.  Customer assumes all risks associated with the use of its User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Customer's User Content that makes Customer or any third party personally identifiable.  Customer hereby represents and warrants that its User Content does not violate the Acceptable User Policy (defined below).  Customer may not state or imply that its User Content is in any way provided, sponsored or endorsed by Process Express.  Because Customer alone is responsible for its User Content (and not Process Express), Customer may expose itself to liability if, for example, Customer's User Content violates the Acceptable Use Policy.  Process Express is not obligated to remove any Customer User Content from the Site unless required by applicable Law.  Process Express is not obligated to back up any Customer User Content and Customer User Content may be deleted at any time. Customer is solely responsible for creating backup copies of its User Content if Customer desires.

2.3.                        Ownership. Customer owns its own User Content.  Excluding Customer's User Content, Customer acknowledges that all the IPR in the Site and Services are owned by Process Express or Process Express' licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such IPR.  Process Express and its suppliers reserve all rights not granted in this Agreement.

2.4.                        Reverse Engineering. Except to the extent permitted by law, Customer may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code used in connection with the Services and/or any other aspect of Process Express' technology.

2.5.                        Abuse. Customer shall not access and/or engage in any use of the Services (i) in a manner that abuses or materially disrupts the networks, security systems, Services and/or websites of Process Express and/or (ii) to communicate any message or material that is deemed harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful.

2.6.                        Illegal Purposes.  Customer shall not use the Services for fraudulent or illegal purposes. Furthermore Customer shall not use the Services to record phone communications without notifying the concerned persons and participants that it is recording such communications.

2.7.                        Resale. Customer shall not market, offer to sell, sell and/or otherwise resell the Services to any third party.

2.8.                        No Representation by Customer. Neither Customer nor any of its Named Authorized Users, customers, employees or representatives shall make any representations with respect to Process Express, the Services or this Agreement (including, without limitation, that Process Express is a warrantor or co-seller of any of Customer's products and/or services).

2.9.                        Cookies. By using the Process Express' Services or websites, Customer agrees to the use of cookies. Cookies are small text files that contain data and are used to enhance Customer's experience. Process Express uses cookies to facilitate the use of the Services and websites. Analytical cookies are used to collect information to improve how the Services and websites work. Functional cookies are used to store Customer's preferences and improve the functionality of the Services.

2.10.                    Limited Grant of Rights.  No other rights are granted hereunder to Customer except as expressly set forth in this Agreement.

 

3.      Online Registration. To subscribe to Services via the various Process Express Online product websites, Customer must complete the online registration process, including Customer's electronic acceptance of this Agreement, and Process Express must then accept such online registration. Process Express may reject an online registration by a potential Customer in its sole discretion and is not obligated to provide a reason for its rejection. In the event a potential Customer's online registration is rejected by Process Express, such potential Customer may submit a new online registration for re-evaluation by Process Express.

3.1.                        Registration Data. All Registration Data provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Registration Data as necessary.  Customer represents and warrants that (a) all registration information submitted is truthful and accurate; and (b) Customer will maintain the accuracy of such information.  Process Express reserves the right to terminate this Agreement immediately in the event any Registration Data is found to be inaccurate, incomplete and/or not current at any time. Customer is hereby informed that Registration Data is subject to automatic processing by Process Express for the purposes of managing Customer's account. Customer will have access to Registration Data and may update or correct it as necessary.

3.2.                        Account Password/Security. As part of the online registration process, Customer will choose a password and a user name. Customer is entirely responsible for maintaining the confidentiality of its password and account, and Customer is solely responsible for any and all activities that occur under its account. Customer agrees to notify Process Express immediately of any unauthorized use of its account or any other breach of security. Process Express shall not be liable for any loss that Customer may incur as a result of a third party using its password or account, either with or without its knowledge. Customer may be held liable for losses incurred by Process Express and/or another party due to a third party using Customer's account or password.

3.3.                        Payment Information. All Payment Information provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Payment Information as necessary. Customer hereby authorizes Process Express, from time to time, to take steps to determine whether the debit card or credit card number provided is valid. Process Express reserves the right to terminate this Agreement immediately in the event any Payment Information is found to be inaccurate, incomplete and/or not current at any time. Process Express shall not be responsible for any overdraft charge or other fees that may be incurred by Process Express' use of Customer's debit card or credit card for payment hereunder.

3.4.                        Trial and Promotional Offers.  From time to time, Process Express may offer certain trial and/or promotional offers. Process Express reserves the right to discontinue or modify coupons, credits, trials and promotional offers at its discretion and without notice. Any such trial or promotional offers may not be combined with other coupons, credits, trials, promotions or any other discounts, and are limited to one (1) per Customer. The details of any trial or promotional offers applicable to Customer shall be listed on Customer's My Account page and/or the Process Express website offering the trial.

3.5.                        Privacy Policy. Process Express' use of any information provided by Customer, including without limitation, Registration Data and Payment Information, is set forth in Process Express' current Privacy Policy.

 

4.      Term and Termination.

4.1.                        Term. This Agreement shall commence on the Effective Date and continue for the Term.    Typically a Term is for twelve (12) months or as otherwise specified on Customer's Account page (the "Service Commitment").  At the end of the Term, Customer's Service Commitment will automatically renew for twelve (12) months unless cancelled by Customer.

4.2.                        Termination for Cause.  Process Express reserves the right to terminate this Agreement immediately if Customer breaches any of its material obligations under this Agreement.

4.3.                        Effect of Termination.  Upon termination of this Agreement, Customer will immediately discontinue all access to and use of the Services and cease to represent in any form that it is a user of the Services. Process Express will immediately disable Customer's account upon termination. Neither Party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 4.3; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination.

 

5.      Fees and Charges.

5.1.                        Subscription Fees.  Customer is responsible for all Subscription Fees, and hereby authorizes Process Express to obtain payment of all such Subscription Fees in accordance with the Payment Information, as stated on Customer's My Account page. Customer shall also be responsible for all applicable taxes (withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), etc.) or duties imposed by any government entity or collecting agency EXCEPT those taxes based on Process Express, Inc.'s net income. In the event Customer fails to satisfy its tax and/or duty obligations herein, Customer shall reimburse Process Express upon demand for any taxes and/or duties paid on behalf of Customer and shall indemnify and hold Process Express harmless against any claim and/or liability (including penalties) resulting from Customer's failure to pay such taxes and/or duties.

5.2.                        Voice and Data Charges. Customer shall be responsible for all fees and charges imposed on Customer by Customer's telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used by Customer to access and use the Services.

5.3.                        Changes to Subscription Fees.  Process Express may change Subscription Fees at any time. Process Express will provide Customer notice of any changes to Customer's Subscription Fees.  IF PROCESS EXPRESS INCREASES THE PRICE OF ANY OF THE SERVICES TO WHICH CUSTOMER SUBSCRIBES BEYOND THE LIMITS SET FORTH ON CUSTOMER'S MY ACCOUNT PAGE, PROCESS EXPRESS WILL DISCLOSE THE CHANGE AT LEAST SIXTY (60) DAYS PRIOR TO THE EFFECTIVE DATE OF THE INCREASE.   CUSTOMER MAY TERMINATE THIS AGREEMENT PROVIDED CUSTOMER'S NOTICE OF TERMINATION IS DELIVERED TO PROCESS EXPRESS WITHIN THIRTY (30) DAYS AFTER RECEIVING NOTICE OF THE INCREASE.

5.4.                        Failure to Pay Subscription Fees. In the event that Customer fails to pay billed charges when due and it becomes necessary for Process Express to refer Customer's account(s) to a third party for collection, Process Express will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover the internal collection-related costs Process Express has incurred on such account(s) through and including the date on which Process Express refer(s) the account(s) to such third party.  Customer expressly authorizes and specifically consents to allowing Process Express and/or its outside collection agencies, outside counsel, or other agents to contact Customer in connection with any and all matters relating to unpaid past due charges billed by Process Express to Customer.  Customer agrees that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, email address, or any other electronic address that Customer has provided, or may provide in the future to Process Express.  Customer agrees and acknowledges that any e-mail address or any other electronic address that you provide to Process Express is Customer's private address and is not accessible to unauthorized third parties.  For attempts to collect unpaid charges, Customer agrees that in addition to individual persons attempting to communicate directly with Customer, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or other pre-set electronic messages delivered by any other automatic electronic messaging system.

 

6.      Confidentiality. Unless expressly authorized in writing by the other Party, neither Party shall disclose to any third party any Confidential Information of the other Party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is publicly disclosed through no fault of the receiving Party, (ii) is already lawfully in the receiving Party's possession and not subject to a confidentiality obligation to the disclosing Party, (iii) becomes known to the receiving Party from a third party having an apparent bona fide right to disclose the information, (iv) is shown to have been independently developed by receiving Party, or (v) is Confidential Information that the receiving Party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving Party supplies disclosing Party with timely notice of such court order or subpoena. Furthermore, Customer will keep in confidence all passwords and/or other access information related to the Services. Customer acknowledges that Process Express, and its licensors, retain all intellectual property rights and title, in and to, all of their Confidential Information and/or other proprietary information. This shall include, but not be limited to: products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the Services provided by Process Express hereunder.

 

7.      WARRANTY. PROCESS EXPRESS WARRANTS THAT (i) ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER; (ii) THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE APPLICABLE SERVICE DOCUMENTATION UNDER NORMAL USE AND CIRCUMSTANCES; AND, (iii) THE FUNCTIONALITY OF THE SERVICES WILL NOT BE MATERIALLY DECREASED DURING THE TERM. PROCESS EXPRESS' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT THE SOLE OPTION OF PROCESS EXPRESS AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICE(S) WHICH CONFORMS TO THESE WARRANTIES OR TO TERMINATE THE SERVICE(S) AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID SUBSCRIPTION FEES (FOR THE PERIOD FROM THE DATE OF THE BREACH THROUGH TO THE END OF THE TERM). TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROCESS EXPRESS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROCESS EXPRESS MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

 

8.      LIMITATION ON LIABLITY.  IN NO EVENT SHALL PROCESS EXPRESS (AND OUR SUPPLIERS) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) YOUR INABILITY TO USE THE SERVICES AND (vi) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT P[ROCESS EXPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROCESS EXPRESS' (AND OUR SUPPLIERS') LIABILITY HEREUNDER IS LIMITED TO $50.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

 

9.      Contracting Party, Choice of Law and Location for Resolving Disputes. Process Express is the contracting Party.  Notices shall be addressed to Process Express, General Counsel, 235 Ridgeview Drive, Collegeville, Pennsylvania, 19426.  The governing law is Pennsylvania and controlling United States federal law. The Court having exclusive jurisdiction are Montgomery County, Pennsylvania, U.S.A.

 

10.  Changes to Terms of Service.  This Agreement is subject to occasional revision.  If Process Express makes any substantial changes, Process Express may notify Customer by sending Customer an email to the last email address Customer provided (if any) and/or by prominently posting notice of the changes on the Site.  Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following the dispatch of an email notice to Customer (if applicable) or thirty (30) calendar days following the posting of notice of the changes on the Site. These changes will be effective immediately for new users of the Site or Services.  Customer is responsible for providing Process Express with its most current email address.  In the event that the last email address Customer provided to Process Express is not valid, or for any reason is not capable of delivering to Customer the notice described above, Process Express' dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice.  Continued use of the Site or Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.

 

11.  Additional Terms.

11.1.                    Relationship of the Parties.  Customer and Process Express are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

11.2.                    Assignment.  Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part, and any such attempted assignment or delegation shall be void.

11.3.                    Force Majeure. Neither Party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; systemic electrical, telecommunications, or other utility failures, explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a Party.

11.4.                    Notice.  Process Express may provide Customer with notice via email, regular mail and/or postings on the Process Express website.

11.5.                    High-Risk Use.  Customer hereby acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities including, but not limited to: medical procedures; online control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility. Process Express hereby expressly disclaims any express or implied warranty of fitness for such purposes.

11.6.                    Compliance with Laws. Both Parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. Notwithstanding the preceding sentence Process Express does not guarantee that the Services shall be appropriate and/or available for use in any particular location and Customer is responsible for compliance with local laws to the extent applicable. Process Express reserves the right to modify the Services for any reason, without notice and without liability to Customer or any end user. Customer shall comply with all legal duties applicable to the Customer. Customer must provide the relevant persons and/or participants with all information Customer is required by law to provide and, if necessary, must obtain the consent of these persons and/or participants. Notwithstanding any other provision in this Agreement, Process Express shall have the right to terminate this Agreement immediately upon the determination by Process Express that Customer is not in compliance with U.S. export laws or violates any government privacy and/or data protection laws.

11.7.                    No Waiver.  The failure of either Customer or Process Express in any one or more instance(s) to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s).

11.8.                    Severability.  If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect and the Parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement.

11.9.                    No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.

11.10.                Copyright and Trademark Information.  Copyright © 2013 Process Express, Inc.  All rights reserved.  All trademarks, logos and service marks ("Marks") displayed on the Site are the property of Process Express or the property of other third parties. Customer is not permitted to use these Marks without Process Express' prior written consent or the consent of such third party which may own the Marks.

11.11.                Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either Party unless agreed to in writing by both Parties.

11.12.                Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.

11.13.                Controlling Language. The English language version of this Agreement shall be the controlling version and is incorporated by reference into any translation of this Agreement. Any translation or other language version of this Agreement shall be provided for informational purposes only.

11.14.                References.  Pronouns contained in this Agreement shall apply equally to the feminine, neuter and masculine genders. The singular shall include the plural, and the plural shall include the singular.

11.15.                Beta Version. The terms of this subsection 10.14 shall only apply to Customer with respect to any "Beta' version of any of the Services (the "Beta Services") made available to Customer for purposes of evaluation and feedback. Customer acknowledges that the Beta Service(s) Customer is evaluating may contain bugs, errors and other problems and is provided to Customer "as-is." Therefore, to the extent permitted by applicable law, Process Express disclaims any warranty, condition and/or liability obligations to Customer of any kind with respect to the Beta Services. Customer further acknowledges the importance of communication between Process Express and Customer during Customer's use of the Beta Services and participation in Process Express' Beta program and hereby agrees to receive related correspondence and updates from Process Express. In the event Customer requests to opt-out from such communications, Customer's participation in the Process Express Beta program will be canceled. Customer also hereby acknowledges that Process Express has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Process Express has no express or implied obligation to Customer to announce or introduce the Beta Services. During the Process Express Beta program, Customer will be asked to provide feedback regarding Customer's use of the Beta Service(s) and Customer hereby grants to Process Express a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any Process Express product or service (including the Beta Services) at any time at the sole discretion of Process Express. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict.

 

12.              Acceptable Use Policy.  Process Express' Acceptable Use Policy describes prohibited uses of the Services offered by Process Express, Inc. and the Site located at www.ProcessEx.com. The examples described in this Policy are not exhaustive.  Process Express may modify this Acceptable Use Policy at any time by posting a revised version on the Process Express Site (www.ProcessEx.com).    If Customer violates the Policy or authorizes or helps other to do so, Process Express may suspend or terminate Customer's use of the Services.

12.1.                    Prohibited Uses of the Services and the Site.

12.1.1.  Illegal, Harmful, or Offensive Use or Content.   Customer may not use, or encourage, promote, facilitate or instruct others to use, the Services or ProcessEx Site for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include, but are not limited to:

12.1.1.1.        Illegal Activities.  Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.

12.1.1.2.        Harmful or Fraudulent Activities.  Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.

12.1.1.3.        Infringing Content.  Content that infringes or misappropriates the intellectual property or proprietary rights of others.

12.1.1.4.        Offensive Content.  Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.

12.1.1.5.        Harmful Content.  Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.

12.1.2.  No Security Violations.  You not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a "System"). Prohibited activities include, but are not limited to:

12.1.2.1.        Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.

12.1.2.2.        Interception. Monitoring of data or traffic on a System without permission.

12.1.2.3.        Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.

12.1.3.  No Network Abuse. You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include, but are not limited to:

12.1.3.1.        Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.

12.1.3.2.        Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.

12.1.3.3.        Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.

12.1.3.4.        Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.

12.1.3.5.        Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.

12.1.4.  No E-Mail or Other Message Abuse. Customer will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like "spam"), including commercial advertising and informational announcements. Customer will not alter or obscure mail headers or assume a sender's identity without the sender's explicit permission. Customer will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.

12.2.                    Process Express Monitoring and Enforcement.  Process Express reserves the right, but does not assume the obligation, to investigate any violation of this Acceptable Use Policy or misuse of the Services or ProcessEx Site. Process Express may: investigate violations of this Acceptable Use Policy or misuse of the Services or the ProcessEx Site; or remove, disable access to, or modify any content or resource that violates this Acceptable Use Policy or any other agreement Process Express has with Customer for use of the Services or the ProcessEx Site. Process Express may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. Process Express also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Acceptable Use Policy.

12.3.                    Reporting of Violations of this Acceptable Use Policy. If Customer becomes aware of any violation of this Acceptable Use Policy, Customer will immediately notify Process Express and provide us with assistance, as requested, to stop or remedy the violation.

 

 

EXHIBIT 1

Description of Services

1.      Description of Services. The selection(s) made and submitted by Customer during the online registration process will identify the specific Service(s) subscribed to by Customer hereunder and the number of Named Authorized Users for each Service, all of which shall be listed on Customer's My Account page within the Process Express website. Notwithstanding, this Agreement will apply to any Services subscribed to by Customer at any time on or after the Effective Date. The following describes the Services currently offered by Process Express:

1.1.                        Cloud Services

1.1.1.      ProcessEx®:

1.1.2.      ProcessEx Service. By subscribing to the ProcessEx Service, Customer may access and use the ProcessEx online application for the purpose of executing, managing and tracking business processes.

1.1.3.      Devices and Server(s) means the following for purposes of ProcessEx Service: (i) device is a physical or virtual machine including, but not limited to, computers, servers, printers, switches, IP phones and routers connected to a network; and (ii) server is a physical or virtual machine that shares resources (e.g., access to data files, programs and other peripheral devices) with other devices on a network.

1.1.4.      Uploaded Data. As between Customer and Process Express, Customer shall own any data, information or material that Customer submits to the ProcessEx Service in the course of using the ProcessEx Service ("Uploaded Data"). Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any and all Uploaded Data. Process Express shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Uploaded Data. Upon request by Customer or as required by law, Process Express may remove, modify, edit or otherwise alter any Uploaded Data. If Process Express, on its own or through any third party, determines that data stored by the Customer is in violation of any law or infringes third party rights, Process Express shall have the right to, without liability to the Customer, immediately remove or suspend access to such data without prior notice to Customer. Customer may be notified by Process Express of any such action under this Section, where reasonable and possible. Customer agrees and acknowledges that Process Express has no obligation to retain Uploaded Data following termination.

1.2.                        Services Definitions:

1.2.1.      Named Authorized User(s) (sometimes referenced as "NAU") means those Customer-designated individuals who may access and use the Services in accordance with this Agreement. Each Named Authorized User must have a unique identifier (i.e. "Named User ID" as defined below), Customer-designated individuals may include, by way of example, employees, contractors, consultants and agents or third parties with which Customer transacts business as determined by Customer.

1.2.2.      Named User ID means the unique identifier of each Customer-designated individual authorized to use the Services. A Named User ID may not be of a generic nature (e.g., john.doe@company.com is a unique Named User ID; whereas support@company.com, user1@company.com, trainer@company.com, etc., are examples of generic user identifiers).

1.3.                        Customer Access and Use. During the Term of this Agreement, and upon payment of all applicable Fees, Customer may access and use the Services subscribed to hereunder pursuant to and in accordance with the provisions of this Agreement. Process Express will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by the Agreement. Thereafter, Customer shall be solely responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services. Customer may reassign Named Authorized Users, Devices and/or Server(s) without incurring additional fees provided that the number of such Named Authorized Users, Devices and/or Server(s) does not increase. Customer may inform its users, customers and employees that the Services are powered by Process Express. If Customer's broadband connection fails, the Services and some related voice service will also fail. The Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of the control of Process Express.