NOTICE TO USER: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE OR SERVICES YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE, WARRANTY, LIABILITY, AND TRANSFERABILITY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
IF YOU DO NOT AGREE, DO NOT USE THE PROTEXIS SOFTWARE AND SERVICES.
Protexis provides software and product registration and payment processing merchant services (collectively the "Software and Services"). Your use of Protexis Software and Services is based on your acceptance, without modification, of these Terms.
We reserve the right, in our sole discretion, to modify these Terms or Service fees at any time, effective upon the date we post revised terms or fees on our sites. Your continued use of the Software and Services constitutes your binding acceptance of these Terms including any changes or modifications that we may make. If any part of these Terms or any future changes are not acceptable to you, you may contact us at info@protexis.com to cancel your use of the Software and Services.
Service Terms
Copy Protection: Protexis has developed and will maintain copy protection systems that will help prevent unauthorized use of your software products. Protexis may, from time to time at its sole discretion, modify or replace such copy protection systems, provided that such modifications or replacements are intended to maintain or enhance the level of copy protection provided, and provided that your authorized end users can unlock all distributed versions of your software products that have been copy protected by the Protexis Software.
Hosting: Protexis shall host the Protexis Services.
Responsibilities: You will provide support to your end users.
Service Hours: Protexis will provide you technical support via email between 8:00 am to 5:00 pm Pacific Time Monday through Friday, unless we otherwise mutually agree in writing.
Your Access to the Service
We reserve the right, in our sole discretion, to restrict, suspend or terminate your access to all or any part of the Software and Service at any time for any reason without prior notice or liability. We may change, suspend or discontinue all or any aspect of the Software and Services at any time, without prior notice or liability. Our goal is to ensure timely processing services; however, we do not guarantee that transactions will be processed within the expected timeframes associated with any Protexis program. We will not be liable, and you will not be entitled to a refund for service outages that are caused by our maintenance on the servers or the technology that underlies the Service, failures of our service providers (including telecommunications, hosting and power providers) computer viruses, natural disasters or other destruction or damage of our facilities, an act of nature, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, computer virus, third-party interference or other cause beyond our reasonable control.
Reports and Statistics
From time to time, we may give you statistics that we generally give to other providers who are enrolled in programs similar to the ones in which you are enrolled. You will treat these reports as confidential information and you will not disclose any information contained in them to any third party without our consent. You agree that the statistics provided in these reports are the official, definitive measurement of Protexis' performance. No other measurements, usage statistics or download data (including yours) will be accepted by us or have any bearing on your rights and obligations under any program in which you have enrolled.
Payment Processing and Merchant Services
If you have so elected Protexis shall process credit card transactions on your behalf. When you sell or license software products using these Protexis Services, Protexis shall be the merchant of record for such sales. Protexis shall retain a portion of the gross revenue of the credit card transaction as its fee for providing services for that transaction. All amounts collected from transactions, including amounts which are owed to you shall be placed in a Protexis account. Your portion of the gross revenue shall be paid to you monthly no later than 30 days after the end of the calendar month in which the sale occurred. If we process any refunds to end users who have purchased your products we will deduct the amount of the refunds plus any applicable fees from any proceeds due you. If any credit card processor charges back to Protexis an amount against any sale of your products (which they may do for any reason allowable under our credit card processors merchant regulations, including fraud, consumer complaint, or government order) we shall deduct that amount from funds due you. We may also charge you for any fees resulting from said refunds or chargebacks. We may holdback some or all of the money that is due you at the end of any month if we believe it might be necessary to reasonably cover future refunds, chargebacks, or other liabilities. We may also reasonably holdback some or all of the money if we believe that the funds represent fraudulent transactions or involve other illegal activities. You recognize that in some situations the holdbacks may not be sufficient to cover the refunds, chargebacks, or other fees, in which case you agree to pay us within 30 days, the full amounts for any shortfall owed to us due to refunds, chargebacks, fees for service.
Any and all taxes or governmental fees based on the sale or licensing of your products are your responsibility and you shall do all required filings and remittances of such taxes. You shall inform Protexis of the jurisdictions and amount of taxes you wish Protexis to collect on your behalf. Protexis shall have no liability whatsoever in the case of your failure to direct Protexis to collect taxes for which you are liable. Protexis shall assess and collect such taxes as you direct and remit collected amounts to you on a monthly basis.
Certification and Grant of License
You certify that you own all intellectual property rights in any materials, including but not limited to software products, that use Protexis Software and Services and that the operation or distribution of such work does not, and will not, violate any law or third party rights. For the limited purposes of providing the Services under this agreement, you also grant us, our affiliates, and our business partners a worldwide, royalty-free, nonexclusive license to use, reproduce, transmit, distribute, publicly display, publish, publicly perform, digitally perform, sublicense, transfer, sell and create derivative works of the materials, including but not limited to software products, that you submit and subsequent versions of such work.
Legal Policies and Notices
You hereby agree to indemnify, defend and hold Protexis, and all of our officers, directors, owners, agents, information providers, affiliates, distributors and licensors (collectively, the "Protexis Parties") harmless from and against any and all liability, losses, costs and expenses (including attorneys' fees) incurred by any Protexis Party in connection with any claim arising out of (1) any claim that if proven true would constitute a material breach of these Terms, (2) any use or alleged use of your account by any person, whether or not authorized by you, or (3) any claim arising out of the material provided by you for which we provide Services, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, trademark infringement and any claim or liability relating to the content, quality, or performance of materials that you submit to the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
PROTEXIS PROVIDES THE PROTEXIS SYSTEM "AS IS" AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR TITLE. YOU ACKNOWLEDGE THAT PROTEXIS HAS NOT REPRESENTED OR WARRANTED THAT THE USE OF THE PROTEXIS SYSTEM WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY. YOU ACKNOWLEDGE THAT PROTEXIS HAS NOT REPRESENTED THAT THE PROTEXIS SYSTEM WILL PREVENT ALL UNAUTHORIZED USE OF YOUR SOFTWARE PRODUCTS. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY RESPECTING PROTEXIS SYSTEM BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES BY ANY OTHER PROTEXIS CUSTOMER OR PROTEXIS SYSTEM USER.
IN NO EVENT WILL PROTEXIS' LIABILITY TO YOU ARISING OUT OF THIS AGREEMENT EXCEED U.S. FIVE HUNDRED DOLLARS (U.S. $500). IN NO EVENT WILL PROTEXIS HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOST BUSINESS OPPORTUNITIES OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER PROTEXIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, our liability and that of our third party content providers and their respective agents shall be limited to the greatest extent permitted by law.
Limitation of Service: You acknowledge that Protexis, in making the Protexis System available over the internet, is in no manner responsible for the results of any credit inquiry, the operation of any web site or data center belonging to others, or the actions or inaction of any other person or entity, including any of your customers or end user.
Security and Copy Protection: Protexis shall have industry standard protection in place to minimize the risk of your data becoming lost or accessed in an unauthorized manner. Protexis does not guarantee the security of the Protexis System and Protexis will not be responsible in the event of any infiltration of its security systems. Protexis does not guarantee that your software programs, protected by the Protexis System, cannot be used in an unlicensed installation by an end user without first being activated by the Protexis System. You acknowledge that all security and copy protection systems are inherently fallible.
Third-Party Control: The flow of data over the internet depends in large part on the performance of connections and services provided by third parties. Failure of these parties to perform their services correctly can disrupt internet sessions. Protexis cannot guarantee such events will not occur, and disclaims any and all liability, claims or losses resulting from or relating to such events.
Information: You acknowledge that, in providing the Protexis System, Protexis could rely upon information, instructions and services from you, your employees and agents, and other third parties. You fully assume the risk associated with errors in such information, instructions and services provided that Protexis has accurately transmitted data and/or complied with your authorized instructions.
Force Majeure: Neither party will be liable for any failure or delay in performing any obligation under these Terms that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, communications systems breakdowns or failure of the internet, hardware or software failures (other than those attributable to the party hereto that has failed to perform hereunder), transportation stoppages or slowdowns or the inability to procure supplies or materials. If any of these causes continue to prevent or delay performance for more than 10 days, the affected party may terminate this Agreement, in whole or in part, effective immediately upon written notice to the other party.
No Waiver: The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement.
Compliance with All Laws: Each party agrees that it will perform its obligations hereunder in accordance with all applicable laws, rules and regulations now or hereafter in effect.
No Third-Party Beneficiaries: The parties acknowledge and agree that there are no intended third party beneficiaries to this Agreement.
Attorneys' Fees: Should litigation arise concerning this Agreement, the prevailing party shall be entitled to its attorneys fees, court costs and accrued court appointed interest in addition to any other relief it may be awarded.
Jurisdiction: These Terms shall be construed in accordance with the laws of the Province of British Columbia, and the parties irrevocably consent to bring any action to enforce these Terms in the federal or provincial courts located in Vancouver, British Columbia, Canada.
Agreement: These Terms constitute the entire Agreement between you and Protexis with respect to the Software and Services. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms shall continue in effect.
