THIS SERVICE AGREEMENT (the “Agreement”), is made and entered into by and between Pronet Solutions Corporation (“Pronet”), a Texas corporation, and You, as defined in Your executed Pronet Security-as-a-Service Estimate and Purchase Agreement with Pronet. By using and/or accessing the services described below, You hereby agree to all terms and conditions contained herein. Additionally, You agree to be bound by the Pronet Security-as-a-Service terms of service and end user license agreement available online at https://pronetcorp.com/terms/pronet-security-as-a-service-agreement.
Subject to the terms and conditions of this Agreement, Pronet shall provide You with a managed service that provides implementation, management, and support (the “Security-as-a-Service” or “Service”) of a Pronet-provided security appliance at Pronet’s discretion additional security software during the term of this Agreement.
- Fees, Billing, and Payment
You will pay monthly service fees and other fees for the Security-as-a-Service to Pronet or to Pronet’s authorized reseller in the amount and in the manner set forth in Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet.
2.2 Security Appliance(s)
For the purpose of providing the Pronet will provide to You one or more network security appliances (“Appliances”) that remain the property of Pronet. When new Appliances are needed during the normal course of business, any previous appliances used to provide the Service will be returned to Pronet at Pronet’s discretion. At the termination of this agreement these Appliances will be returned to Pronet.
2.3 Adjustment of Fees
It is understood that the fees for the Security-as-a-Service are based on the deployed security hardware appliances and software. If Your organization’s usage or requirements change resulting in needing a different or additional hardware appliance or software, Your Fees may be updated to reflect the new service configuration.
All payments to Pronet must be made in U.S. dollars by credit card or eCheck at https://pronetcorp.com or by wire transfer. The Fees exclude all applicable sales, use, withholding and other taxes, and You will be responsible for payment of all taxes (other than taxes based on Pronet’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees. You will make all payments of the Fees to Pronet free and clear of, and without reduction for, any taxes, fees or duties; any such taxes imposed on payments of the Fees to Pronet will be Your sole responsibility, and You will provide Pronet with official receipts issued by the appropriate taxing authority, or such other evidence as Pronet may reasonably request, to establish that such taxes have been paid. You will indemnify and hold Pronet harmless from any such taxes or claims relating to the payment, non-payment or underpayment of such taxes. Any portion of the Fees that is not paid when due will accrue interest at two and a half percent (2.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
- Pronet Responsibilities
3.1 Service and Security
Pronet will provide the Security-as-a-Service to You on a “commercially reasonable efforts” basis. Pronet will implement reasonable efforts to ensure a high level of service and reasonable security precautions to ensure protection and confidentiality of any of Your network appliances.
3.2 Data Privacy and Confidentiality
Pronet agrees to hold confidential all Your data in its possession exercising the same degree of care that a reasonable and careful company would exercise with similar data of its own. Pronet will limit access to Your data only to employees, contract labor, and subcontractors of Pronet, or to any affiliate or successor to the business or assets of Pronet; provided that in the event that Pronet is made aware of a potential violation of the terms of any law, any regulation, or this or any end user Agreement, Pronet may take, but is under no obligation to take, such investigative and remedial measures as each deems in its sole discretion to be appropriate, including copying and sharing data with appropriate legal authorities, providing access to data and activity information with legal authorities, removal of violating data without notice, denial or suspension of access and services, or any such other remedies or actions as may be otherwise requested by legal authorities or allegedly aggrieved parties, even in the absence of subpoena or compulsion by government authority.
- Your Responsibilities
4.1 Client Software & License Grant
4.2 Use Restrictions
You will comply with any and all rights and restrictions granted by The software provider to licensees of Security Software and The software provider’s Online Services Use Rights for Security Software at a site that the software provider identifies. Additionally, You agree not to: (a) modify, adapt, alter, translate, or create derivative works from the client software; (b) merge the client software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer Security Software or client software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the client software; (e) use Security Software or client software to process data or provide any service bureau activity for any third party; or (f) otherwise use Security Software, or use or copy the client software, except as expressly allowed under Section 4 and its provisions.
4.3 Other Responsibilities
You will arrange for and maintain Internet communication services used to connect to the Pronet website and to connect to Security Software. You are responsible for any communication costs associated with Your Internet communications services. You further agree that You shall not place any data on the Pronet website or Security Software that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statue, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. You shall defend, indemnify and hold Pronet harmless against any third party claim, action, suit or proceeding alleging any breach of the covenants contained herein.
- Service Features
Pronet will provision and manage Your account, subscription, settings and features associated with the Security-as-a-Service and Security Software.
- Authorized Account Changes and Data Recovery
6.1 Authorized Contact
The contact listed in Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet (“Authorized Contact”) may request account changes to Your Security-as-a-Service and Security Software. The Authorized Contact will act as the main point of contact with Pronet with regard to the Security-as-a-Service and Security Software and will provide Pronet all necessary information for the activation and continued provisioning of the Security-as-a-Service and Security Software. The Authorized Contact will act as Your sole contact with Pronet for purposes of any applicable system training and/or technical support. For security purposes, Pronet, at its sole discretion, may choose to deny any requests made by anyone else other than the Authorized Contact.
If You purchased support with the Service, then Pronet will provide support to You during normal business hours, which are defined as 8:00 a.m. – 5:00 p.m., Monday through Friday, United States central time, excluding federal holidays in the United States and observed Pronet holidays. You may request support both during and outside normal business hours by opening a support ticket via the Pronet website at https://pronetcorp.com/support or by calling a Pronet authorized support agent.
You agree to and accept Pronet’s incident response time expectations, Your remedies, and the method for obtaining SLA credits as outlined in the Pronet Service Level Agreement (SLA) and listed on the Pronet website at https://pronetcorp.com/terms.
You acknowledge that in the event You experience trouble with Security Software, You are responsible for on-site cooperative testing with Pronet support to assist in the diagnosis of the trouble. Pronet is not responsible for end-user support of issues not directly related to the Security-as-a-Service or to Security Software. This includes (but is not limited to) Your operating systems, Your equipment, or Your application support. Pronet reserves the right to bill You at current hourly rates for configuration requests that are not required to provide the Security-as-a-Service as outlined herein. Additionally, Pronet is not liable for any late, delayed, or non-delivered or non-received e-mails, is not liable for any synchronization errors, and is not liable for any disruption in any of the services associated with the Security-as-a-Service or Security Software no matter what the root cause.
- Term and Termination
This Agreement shall have the initial term as set forth in Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet. The term shall automatically renew on a yearly basis at the end of the initial term and thereafter, unless You notify Pronet, in writing at least ninety (90) days prior to the end of the then current term of Your intention to not to renew this Agreement. Pronet or any Pronet certified reseller reserve the right to modify the price schedule for the Security-as-a-Service at any time, and pricing for any renewal term shall be at the price as set forth on the most current price schedule in effect upon the renewal date.
A party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure the breach within ninety (90) days after receiving written notice thereof. Pronet may also terminate this Agreement, effective immediately upon written notice to You, if: (a) You breach any provision in Section 4.2; or (b) You fail to pay any portion of the Fees when due within ten (10) days after receiving written notice from Pronet that payment is past due. You may also terminate this Agreement at any time during the term by providing ninety (90) days advance notice to Pronet, in writing, of Your intention to terminate this Agreement, and by immediately paying all amounts due under this Agreement for the remainder of the term. Failure to immediately pay all amounts due under this Agreement for the remainder of the term will forfeit Your written intention to terminate.
8.3 Effects of Termination
Upon termination or expiration of this Agreement for any reason, any amounts owed to Pronet under this Agreement before such termination or expiration will be immediately due and payable, all Your rights granted in this Agreement will immediately cease to exist, and You must promptly discontinue all use of the Security-as-a-Service and Security Software, erase all copies of any client software associated with the Security-as-a-Service and Security Software from Your systems and certify in writing to Pronet that You have fully complied with these requirements. Additionally, upon termination or expiration of this Agreement, all associated data with the Security-as-a-Service and Security Software will be permanently deleted, without any obligatory notice by Pronet to You.
8.4 IP Addresses
During the term of this Agreement, You agree that Pronet may, as it determines necessary, make modifications to DNS records, zones, and Internet Protocol (“IP”) Addresses on any DNS servers managed or operated by Pronet in connection with the Services. Additionally, upon termination or expiration of this Agreement, Pronet may permanently delete any DNS records, zones, and IP Addresses on any DNS servers managed or operated by Pronet in connection with the Services, without any obligatory notice by Pronet to You. Upon expiration or termination of the Agreement, You must discontinue use of the Services and relinquish use of any and all IP addresses and/or server, host, or CNAME names or records assigned to You by Pronet in connection with Services, including pointing the DNS name servers for Your domain name(s) away from Pronet’s DNS name servers, and You must certify in writing to Pronet that You have fully complied with these requirements.
8.5 Disposition upon Termination
You acknowledge that upon the expiration or termination of this Agreement, any attempt to access the servers of the Security-as-a-Service or Security Software in connection with any of Your accounts for whom You have not paid all fees, or for whom Your rights have expired or terminated, is prohibited and unauthorized.
8.6 Failure to Comply & Unauthorized Activity
Pronet may pursue criminal investigation and/or legal action, including the pursuit of punitive damages, against You if it is determined that, but not limited to: (a) prohibited or unauthorized activity is attempted by You as described herein; (b) unlicensed use of the Software or Services is attempted by You as described herein; (c) restricted use is violated by You as described in Section 4.2; or (d) You fail to comply with Your written notification obligations in Sections 8.3 and 8.4 immediately, as determined by Pronet.
Sections 8.3 (“Effects of Termination”), 8.4 (“IP Addresses”), 8.5 (“Disposition upon Termination”), 8.6 (“Failure to Comply & Unauthorized Activity”), 8.7 (“Survival”), 9 (“Warranty and Disclaimer”), 4.2 (“Use Restrictions”), 10 (“Liability Limitation”), and 11 (“General”) will survive termination or expiration of this Agreement for any reason.
- Warranty and Disclaimer
9.1 Services Warranty
Pronet’s role and exclusive warranty is that the Security-as-a-Service provided under this Agreement shall be performed in conformity with the standard practices in the industry. Notwithstanding the foregoing, the communication and security mechanisms implemented by Pronet and or The software provider Corporation have inherent limitations and You are solely responsible for determining that this mechanism sufficiently meets Your communication, security and operational needs.
THE EXPRESS WARRANTIES IN THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SECURITY-AS-A-SERVICE, SECURITY SOFTWARE, AND CLIENT SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 9.
- Liability Limitation
IN NO EVENT WILL PRONET BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. PRONET ALSO SHALL NOT HAVE ANY LIABILITY FOR ANY PROGRAMS OR DATA USED WITH THE SECURITY-AS-A-SERVICE, SECURITY SOFTWARE, OR ANY CLIENT SOFTWARE ASSOCIATED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROGRAMS OR DATA OF ANY KIND OR THE COSTS OF RECOVERING SUCH DATA. PRONET’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SECURITY-AS-A-SERVICE, SECURITY SOFTWARE, AND CLIENT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF TOTAL FEES PAID TO PRONET BY YOU DURING THE PERIOD OF ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE, AS DETERMINED BY PRONET, ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. YOU ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PRONET WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
11.1 Proprietary Rights
The Security-as-a-Service and all worldwide Intellectual Property Rights therein, are the exclusive property of Pronet. All rights in and to the Security-as-a-Service not expressly granted to You in this Agreement are reserved by Pronet. You will not remove, alter, or obscure any proprietary notices (including copyright notices) of Pronet in associated with the Security-as-a-Service.
You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement (including Your licenses with respect to the Security-as-a-Service and Security Software) to any third party without Pronet’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), by certified or registered mail, (postage prepaid and return receipt requested), or by email (read receipt confirmed and documented or with email response from recipient that indicates acknowledgement of receipt) to the other party at the address(es) set forth beneath such party’s signature or as indicated in Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet, and will be effective upon receipt or, in the case of mail, three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
11.4 Governing Law and Venue
This Agreement will be governed by the laws of the State of Texas, without reference to its conflicts of law principles. Any action or proceeding arising out of a breach by You of Section 4.2 may be brought in a federal court in the Southern District of Texas, USA or in state court in Harris County, Texas, USA and each party irrevocably submits to the jurisdiction and venue of those courts.
11.5 Dispute Resolution
Subject to Section 11.4, any action or proceeding arising from or relating to this Agreement shall be finally settled by arbitration before American Arbitration Associate (the “AAA”) pursuant to its Commercial Arbitration Rules (the “Rules”). The arbitration shall be before one (1) arbitrator appointed by the AAA pursuant to the Rules. The parties agree that arbitration must be initiated within three (3) months after the claimed breach occurred and that the failure to initiate the arbitration within the three-month period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail, return receipt requested, to all parties and to AAA. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a submission agreement, in a form provided by AAA, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration hearing. Any arbitration instituted under this subsection shall take place in Harris County, Texas, USA.
You agree to defend, indemnify and hold Pronet, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors (the “Pronet Indemnitees”) harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any data You store, submit, post, transmit, or otherwise make available through the Service; (b) Your use of the Service; (c) any violation by You of this Agreement; (d) any action taken by Pronet as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; (e) Your violation of any rights of another; (f) Your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Pronet Acceptable Usage Policy, or violation of Section 11.11 (Export Control) of this Agreement; or (g) any usage of Your account, whether or not such usage is expressly authorized by You.
This means that You will pay the cost of defending the claim (including reasonable attorney fees) and any damages, awards, fines, or other amount that are imposed on the Pronet Indemnitees as a result of the claim. This also means that You cannot sue the Pronet Indemnitees as a result of Pronet’s decision to remove or refuse to process any information or data, to warn You, to suspend or terminate Your access to the Service, or to take any other action during the investigation of a suspected violation or as a result of Pronet’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement.
You acknowledge that You are responsible for all use of the Service involving Your account, that this Agreement applies to any and all usage of Your account, and that Your obligations under this subsection include claims arising out of the acts or omissions of Your employees, any other person to whom You have given access to the Service, and any person who gains access to the Service as a result of Your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by You. If You resell the Service, the grounds for indemnification stated above also include any claim brought by Your customers or end users arising out of Your resale of the Service.
We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to You. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this subsection as we incur them.
The parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Security-as-a-Service contains valuable trade secrets and proprietary information of Pronet, that any actual or threatened breach of Section 4.2 will constitute immediate, irreparable harm to Pronet for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach and Pronet is entitled to such relief without the need to post a bond.
All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver or any other provision or of such provision on any other occasion.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Section 9.
11.10 Force Majeure
Pronet will not be responsible for any delays or failures caused by events, occurrences, or causes beyond the control of Pronet, as determined by Pronet, including without limitation, acts of God, natural disasters, fires, explosions, terrorist attacks, acts of utility providers, or any other possible hindrance which impairs Pronet’s provision of the Security-as-a-Service or The software provider’s provision of Security Software. Additionally, Pronet will not incur any liability on the account of any loss or damage resulting from any delay or failure to perform all or any part of the Agreement if such delay or failure is caused by such aforementioned events, occurrences, or causes, or as otherwise determined by Pronet. You acknowledge that Your inability to meet financial obligations from any claim of force majeure will be not be accepted, and all fees payable to Pronet will remain outstanding until paid by You to Pronet in full.
11.11 Export Control
Use of the Service and Software, including transferring, posting, or uploading data, software or other content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to any entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software and Service, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to use the Service or Software to upload or store any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
11.12 No High Risk Use
You may not use the Service in any situation where failure or fault of the Service could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, You may not use, or permit any other person to use, the Service in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
11.13 Electronic Contracting
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain Your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
This Agreement may be amended by Pronet, and such amendments shall be immediately in effect upon Pronet’s publication of the new Agreement on its website at https://pronetcorp.com/terms/hostedexchange (“the Online Agreement”). Any version of the Online Agreement shall assume that the terms “You” and “Your” as contained herein shall carry the same definitions as “Subscriber” and “Subscriber’s”, respectively, as defined in Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet. Additionally, the Online Agreement may not enlist specifics as outlined in Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet; however, the Online Agreement version shall carry the same effect as having the attached and/or corresponding Site License Order Form and Purchase Agreement incorporated. It is Your responsibility to regularly review the Online Agreement, and Your continued use of the Security-as-a-Service, Security Software, and/or client software described herein indicates that You agree to all amendments and are fully bound to the Agreement, including any and all amendments therein.
11.16 Entire Agreement
This Agreement, and any exhibits attached to Your executed Security-as-a-Service Estimate and Purchase Agreement with Pronet, constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The terms on any purchase order or similar document submitted by You to Pronet will have no effect.