Last Updated: March 11, 2022
The Services allow our Subscribing Organizations (as defined below) and/or Prokeep and individuals to communicate with one another via SMS text messaging or messaging through the Services and to facilitate interactions via other technology. The Services are often implemented with a Subscribing Organization’s specific directions for how to best communicate with you.
Where a mobile phone or mobile web browser application is involved with your use of the Services, your use may be subject to additional terms and conditions. In such cases, those additional terms and conditions supplement these Terms.
1. Eligibility; Fees.
In order to use the Services, you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. These Terms apply to all categories of users. If you are using or opening an account on the Services on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you: are an authorized employee of that Subscribing Organization and agree to be bound by these Terms with regard to your use of the Services on behalf of such Subscribing Organization. Fees and other conditions for Users’ access to and use of the Services may be governed by the another agreement between a Subscribing Organization and Prokeep, such as a Software as a Services Agreement (a “Separate Agreement”), which such Separate Agreement would provide additional or supplemental these Terms, to the extent noted therein.
2. Modification of the Terms.
Prokeep reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time without notice to you. All changes shall be effective immediately, unless otherwise stated. In the event of a material change, we may notify you via text (and/or e-mail, if we have collected an email from you) according to your account preferences. Please check these Terms periodically for changes. Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes. To the extent that you are an administrative user or the highest level of user in your Subscribing Organization, your acceptance of these Terms or any Guidelines or Policies will constitute acceptance by your Subscribing Organization. Likewise, if you are an administrator on behalf of a Subscribing Organization, if you accept any modifications, updates or other changes to these Terms, Guidelines or Policies, your acceptance will be binding on your Subscribing Organization. The most current version of these Terms, which supersedes all previous versions, can be reviewed by clicking on the “Terms of Service” located at the bottom of the our website.
3. Services Access.
Prokeep grants you permission to use the Services as set forth in these Terms, provided that and for so long as (i) you use the Services solely for your personal use and not permit others to use the Services on your behalf; (ii) except as expressly permitted in these Terms or by Separate Agreement, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the Services in any medium without Prokeep’s prior written authorization; (iii) you do not alter or modify any part of the Services other than as may be reasonably necessary to use the Services for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms. The Services is controlled and offered by Prokeep from its facilities in the United States of America. Prokeep make no representations that the Services is appropriate or available for use in other locations. If you are accessing or using the Services from other jurisdictions, you do so at your own risk and you are responsible for compliance with local law.
4. Ownership; Proprietary Rights.
As between the Parties, Prokeep is the sole owner of the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, applications, software, services, and all other elements of the Services and any Prokeep product, data, application, application programming interfaces, software development kit or technology that are provided by Prokeep (“Prokeep Materials”) or are otherwise owned and operated by Prokeep. With regard to Subscribing Organizations, a Separate Agreement governs ownership of data and intellectual property between Prokeep and any Subscribing Organization, and you agree that your use is restricted as set forth in any Separate Agreement. Prokeep Materials do not include User Content (defined below) or any Non-Prokeep Content (as defined below). Except as expressly authorized by Prokeep, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of Prokeep or the Prokeep Materials. Prokeep reserves all rights not expressly granted in these Terms. User shall not acquire any right, title, or interest to the Prokeep Materials, except for the limited right to use the Services as set forth in these Terms (and as may be supplemented by any Separate Agreement).
5. User Content.
The Services may now or in the future permit the submission and posting or linking of images, files, media, text, audio and video recordings, photos, commentary or any other content submitted by you and/or other users (“User Content”), and the hosting, sharing, messaging and/or publishing of such User Content. User Content is not controlled by Prokeep. Prokeep makes no representations that it will publish or use your User Content in any way and may or may not use your User Content in its sole discretion. You understand that whether or not such User Content are published, Prokeep does not guarantee any confidentiality with respect to any User Content, except as may be set forth in a Separate Agreement.
b) Grant of Rights.
By submitting User Content to Prokeep, you hereby grant Prokeep and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with Prokeep and Prokeep’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of Prokeep (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each user of Prokeep a non-exclusive license to access your User Content through or in connection with the Prokeep Materials, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Services or Prokeep Materials and these Terms (and, to the extent applicable, any Separate Agreement).
c) Your Representations and Warranties Regarding User Content.
You shall be solely responsible for your own User Content and the consequences of posting or publishing them. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Prokeep to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Prokeep and these Terms, and to grant the rights and license set forth in this Section, and (ii) your User Content, Prokeep’s use of such User Content pursuant to these Terms, and Prokeep’s exercise of the license rights set forth in this Section, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.
d) Prohibited Uses of User Content.
In connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to Prokeep: (i) any falsehoods or misrepresentations that could damage Prokeep or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, sexually, gender, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner. You represent, warrant and agree that you have obtained the prior requisite consent and permission to display and post on the Services or using the Prokeep Materials any personally identifiable information submitted by You, including any text, personally identifiable information, personal health information, pictures, photographs, videos, names, or the like. You further represent, warrant and agree that you will comply with all export controls, arms limitations or controls and other provisions of applicable law.
e) Some of the Service may, in the future, be supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Prokeep may place such advertising and promotions on the Services or on, about, or in conjunction with your User Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
6. Non-Prokeep Content Disclaimer.
You understand that when using the Services you will be exposed to User Content and other third party content, such as third party applications or integrations (together, the “Non- Prokeep Content”) from a variety of sources, and that you may be exposed to Non-Prokeep Content that is inaccurate, offensive, indecent, or otherwise objectionable. Prokeep does not endorse any Non-Prokeep Content or any opinion, recommendation, or advice expressed therein. IN ANY DEALINGS YOU HAVE WITH THIRD PARTIES THROUGH THE SERVICES, YOU ARE SOLELY RESPONSIBLE FOR ALL RISKS ASSOCIATED WITH SUCH DEALINGS. Under no circumstances will Prokeep be liable in any way for or in connection with the Non-Prokeep Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-Prokeep Content, any intellectual property infringement with regard to any Non-Prokeep Content, or for any loss or damage of any kind incurred as a result of the use of any Non- Prokeep Content posted, emailed or otherwise displayed or transmitted through the Services (or otherwise through any Prokeep Materials).
7. Non-Monitoring of Users and Non-Prokeep Content.
You understand that all Non- Prokeep Content is the sole responsibility of the User and/or Third Party who submitted such Non-Prokeep Content. This means that you, and not Prokeep, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available through the Services. Prokeep does not control the Non-Prokeep Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Non-Prokeep Content for any purpose. If at any time, Prokeep chooses, in its sole discretion, to monitor the Non-Prokeep Content, Prokeep nonetheless assumes no responsibility for the Non-Prokeep Content, no obligation to modify or remove any inappropriate Non-Prokeep Content, and no responsibility for the conduct of the user submitting any such Non-Prokeep Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non-Prokeep Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Content or other Non-Prokeep Content. Prokeep cannot and does not guarantee any User’s professed identity, including without limitation the identity or nonprofit, tax exempt status of any organization, individual or entity claiming nonprofit status or tax exempt treatment. Users of the Services agree to accept the risks of dealing with people acting under false pretense and that Prokeep is not responsible for the acts or omissions of Users of any kind. Prokeep reserves all rights to conduct background checks of its choosing to verify User identity, but it assumes no obligation to do so by reserving this right.
8. Removal of Non-Prokeep Content.
Prokeep and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-Prokeep Content that is available on the Services in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
Prohibited Uses of Prokeep.
a) As a condition of your use of Prokeep, you hereby represent and warrant that you will not use the Services (or any Prokeep Materials) for any purpose that is unlawful or prohibited (including without limitation, the prohibitions in this Section) by these Terms.
b) Any use by you of any of the Prokeep Materials and Services other than as permitted by these Terms is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit, any portion of Prokeep Materials, use of Prokeep Materials, access to Prokeep Materials, or Non-Prokeep Content obtained through Prokeep Materials, for any purpose other than for your personal, private, non-commercial purposes.
c) You agree not to use Prokeep Materials if you do not meet the eligibility requirements described in Section 1 above.
d) You agree not to defame, harass, abuse, threaten, stalk or defraud users of Prokeep Materials, or collect, or attempt to collect, personal information about users or third parties without their consent.
e) You agree not to intentionally interfere with or damage, impair or disable the operation of Prokeep Materials or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.
f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of Prokeep Materials, features that prevent or restrict the use or copying of any part of Prokeep Materials, or features that enforce limitations on the use of Prokeep Materials.
g) You agree not to attempt to gain unauthorized access to Prokeep Materials, or any part of it, other accounts, computer systems or networks connected to Prokeep Materials, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of Prokeep Materials or any activities conducted through Prokeep Materials.
h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through Prokeep Materials. You agree neither to modify Prokeep Materials in any manner or form, nor to use modified versions of Prokeep Materials, including (without limitation) for the purpose of obtaining unauthorized access to Prokeep Materials.
i) You agree not to utilize framing techniques to enclose any trademark, logo, copyright or other Prokeep Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Prokeep’s name or trademarks without our express written consent.
j) You agree not to deep-link to Prokeep and will promptly remove any links that Prokeep finds objectionable in its sole discretion. You agree not to use any Prokeep logos, graphics, or trademarks as part of the link without our express written consent.
k) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail, commercial communications or spam to other users of Prokeep Materials as a User. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
l) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, software architecture, database structure or other elements of Prokeep Materials or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
m) You agree not to modify, adapt, translate, or create derivative works based upon Prokeep Materials or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
n) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
o) You agree that you will not use any robot, spider, scraper, or other automated means to access Prokeep Materials for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to Prokeep Materials.
p) You agree that you will not use Prokeep Materials to produce any harmful, infringing or defective product.
q) You agree that Prokeep shall have the right not to honor any Prokeep product or hardware piece containing infringing, harmful, defective, obscene, destructive or otherwise dangerous items using Prokeep Materials, and Prokeep shall have the right to refuse to refund any fees associated with the same.
10. Account Information.
In order to access some features of Prokeep Materials, you will have to create an account. You represent and warrant that the information you provide to Prokeep upon registration and, at all other times, will be true, accurate, current, and complete. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that Prokeep may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Content violates the rights of third parties; (d) provide certain customized features of Prokeep to you, if any, or respond if you contact Prokeep for any reason; or (e) protect the rights, property or personal safety of Prokeep, the users and the public. You may not share your account information (user name or password, for example) with any third party.
For certain Services, you may be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you shall immediately notify Prokeep. YOU MAY BE LIABLE FOR THE LOSSES INCURRED BY PROKEEP OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
12. Dealings with Advertisers.
Prokeep does not currently advertise or offer third parties the chance to advertise services or products on the Services, but it may in the future do so. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through Prokeep Materials are solely between you and such advertiser. YOU AGREE THAT PROKEEP WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON PROKEEP MATERIALS.
13. Links and Third Party Websites.
Prokeep or third parties may provide links on Prokeep Materials to other sites including the content therein (“Reference Services”). Prokeep has no control over such Reference Services or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Services or content linked to by Prokeep. Prokeep provides links to you only as a convenience, and the inclusion of any link on Prokeep Materials does not imply our endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SERVICESS OR AVAILABLE THROUGH REFERENCE SERVICESS, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the Services. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Services.
14. Availability of Service.
Prokeep may make changes to or discontinue any of the media, web communities, products, or services available within Prokeep Materials at any time, and without notice. The media, products, or services on Prokeep Materials may be out of date, and Prokeep makes no commitment to update these materials on the applicable Prokeep Materials that may be accessed.
15. User Disagreements.
You are solely responsible for your involvement with other users of Prokeep or Third Parties (including Subscribing Organizations and their users) to whom Prokeeps and/or its Subscribing Organizations may direct you. Prokeep reserves the right, but has no obligation, to monitor disagreements between you and other users. PROKEEP DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.
You agree that Prokeep, in its sole discretion and for any or no reason, may terminate any Services or account (or any part thereof) you may have through the Services (if applicable) or your use of the Prokeep Materials, and remove and discard all or any part of your account or any User Content, at any time. You agree that your access to Prokeep Materials or any account you may have or portion thereof may be terminated without prior notice, and you agree that Prokeep shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies Prokeep may have at law or in equity.
If you are dissatisfied with the Services or materials, please let us know at firstname.lastname@example.org. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) Prokeep Materials, (ii) any term of these Terms, (iii) any Guidelines or policy or practice of Prokeep in operating Prokeep Materials, or (iv) any content or information transmitted through Prokeep Materials, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account and discontinuing your use of any and all parts of Prokeep Materials and providing notice of termination at email@example.com.
17. INDEMNIFICATION; HOLD HARMLESS.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS PROKEEP, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICES OR ANY PROKEEP MATERIALS; (II) YOUR USER CONTENT, INCLUDING PROKEEP’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY PROKEEP. PROKEEP RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF PROKEEP. PROKEEP WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
18. Disclaimers; No Warranties.
YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION, THE TERM PROKEEP INCLUDES PROKEEP’S OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, AFFILIATES, AND SUBCONTRACTORS.
b) No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PROKEEP DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, REDHIBITION, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PROKEEP OR THROUGH PROKEEP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
c) “As is” and “As available” and “With All Faults.”
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES AND PROKEEP MATERIALS IS AT YOUR SOLE RISK. PROKEEP, USER SUBMISSIONS, NON-PROKEEP CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES AND PROKEEP MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
d) Website Operation and Non-Prokeep Content.
PROKEEP DOES NOT WARRANT THAT THE SERVICES, PROKEEP MATERIALS, USER SUBMISSIONS, NON-PROKEEP CONTENT, SERVICES, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH PROKEEP OR ANY REFERENCE SERVICESS WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
PROKEEP DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR PROKEEP MATERIALS OR ANY REFERENCE SERVICESS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
f) Harm to Your Computer.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICES OR ANY PROKEEP MATERIALS (INCLUDING RSS FEEDS RELATED THERETO) OR ANY REFERENCE SERVICESS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
19. Limitation of Liability and Damages.
a) Limitation of Liability.
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL PROKEEP OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE PROKEEP MATERIALS AND USER SUBMISSIONS ON THE SERVICES OR ANY REFERENCE SERVICESS, PROKEEP ITSELF, OR ANY OTHER INTERACTIONS WITH PROKEEP, EVEN IF PROKEEP OR A PROKEEP AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) Limitation of Damages.
IN NO EVENT SHALL PROKEEP OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES OR PROKEEP MATERIALS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE LESSER OF (i) THE FEES PAID BY YOU TO PROKEEP UNDER THESE TERMS, OR (ii) ONE HUNDRED DOLLARS.
c) Reference Servicess.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SERVICESS OR OTHERWISE BY THIRD PARTIES OTHER THAN PROKEEP AND RECEIVED BY YOU THROUGH OR ADVERTISED ON PROKEEP OR RECEIVED BY YOU THROUGH ANY REFERENCE SERVICESS.
20. Limitations by Applicable Law; Basis of the Bargain.
a) Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
b) Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT PROKEEP HAS OFFERED ITS SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PROKEEP, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PROKEEP. YOU ACKNOWLEDGE AND AGREE THAT PROKEEP WOULD NOT BE ABLE TO PROVIDE PROKEEP TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
21. Digital Millennium Copyright Act Compliance.
If you are a copyright owner or an agent thereof, and believe that any User Content or other Non-Prokeep Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on Prokeep are covered by a single notification, a representative list of such works from Prokeep;
iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Prokeep to locate the material;
iv) Information reasonably sufficient to permit Prokeep to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Prokeep’s designated Copyright Agent to receive notifications of claimed infringement is:
email: firstname.lastname@example.org, telephone: 1-504-226-7756
Prokeep may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on Prokeep. If Notice is by email or mail, it will be provided to the email or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after email is sent, unless Prokeep is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Prokeep with notices only by mail to the address indicated in subsection (l) below.
b) Governing Law.
These Terms shall be governed by and construed in accordance with the laws of the State of Louisiana, without giving effect to any principles of conflicts of law.
You agree that any action at law or in equity arising out of or relating to these Terms or Prokeep shall be filed only in the state or federal courts in and for the Parish of Orleans, State of Louisiana and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.
A provision of these Terms may be waived only by a written instrument executed by the Party entitled to the benefit of such provision. The failure of Prokeep to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Prokeep without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
g) Independence of Relationship.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Prokeep as a result of these Terms or use of Prokeep. You further acknowledge that by submitting User Content or other Non-Prokeep Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Prokeep other than pursuant to these Terms.
Sections 4, 5, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22 will survive any termination of these Terms or your account whether by you or Prokeep.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
j) Entire Agreement.
This is the entire agreement between you and Prokeep relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by Prokeep as set forth in Section 2 above.
k) Claims.YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO PROKEEP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The services hereunder are offered by Prokeep, Inc., located at 610 South Peters, Suite 305, New Orleans, LA 70130, email: email@example.com. Notice to California Residents: Under California Law, California residents have the right to request in writing from businesses with whom they have an established business relationship, (1) a list of the categories of information, such as name, address, e-mail address, and the type of services provided to the customer, that a business has disclosed to third parties (including affiliates that are separate legal entities) during the immediately preceding calendar year for the third parties’ direct marketing purposes, and (2) the names and addresses of all such third parties. To request the above information, please write to us at the address provided above with a reference to California Disclosure Information.
The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Prokeep to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Services or any portion of the Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Prokeep provides. Software related to or made available by the Services may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) 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. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
The English version of these terms controls over any translated version.