These Terms and Conditions (this “Agreement“), as it may be amended from time to time, is entered into between PPMX, Inc., with a principal place of business at 4615 Southwest Freeway, Suite 200, Houston TX 77027 (“PPMX,” “we,” “our,” or “us”) and you (“you” and “your”) with respect to your use of www.PPMX.com (the “Site”) and PPMX’s platform services, whether accessed via an Internet browser, smartphone, tablet, or other device (the “Platform”), and, together with the Site, individually or collectively, as the case may be and the context requires, the “Service”.
THIS AGREEMENT REQUIRES YOU TO RESOLVE DISPUTES WITH PPMX THROUGH FINAL AND BINDING ARBITRATION, EXCEPT AS OTHERWISE SET FORTH HEREIN. ANY ARBITRATION UNDER THIS AGREEMENT MUST TAKE PLACE ON AN INDIVIDUAL BASIS.
By paying for a Platform subscription, or by accessing or using the Service, in whole or part, you: (a) represent that you have the proper legal authority to enter into this Agreement; (b) acknowledge that you have read this Agreement in its entirety; and (c) agree to be bound by all of the terms of this Agreement, and to the prices and conditions provided to you in association with your enrollment to use the Platform.
For purposes of this Agreement, you are a “Subscriber” if you hold a valid subscription to the Platform, and you are a “User” if you are an employee, representative, consultant, contractor, or agent of a Subscriber and you have been supplied a user identification and password (“ Account Credentials ”) by a Subscriber (or by PPMX at a Subscriber’s request). Subject to the terms and conditions of this Agreement, PPMX hereby grants each User a personal, limited, nonexclusive, non-transferable (except pursuant to Section 21), non-sublicensable, revocable license to access and use the Platform during the term of Subscriber’s subscription to the Platform (as evidenced by the sales order or other communication Subscriber entered into in connection with Subscriber’s enrollment to subscribe to the Platform). Users may access the Platform (i) solely in object code form, and (ii) solely via a device that meets the minimum technical requirements necessary to run the Platform (as determined by PPMX). Subscriber must ensure its Users’ compliance with this Agreement, and Subscriber shall be responsible and liable for any User’s non-compliance with this Agreement.
Users may only use the Service for its intended purpose, as permitted by this Agreement, and only in accordance with any applicable federal, state, or local laws, codes, rules, regulations, or orders of any governmental authority (“Law”). Without limiting the immediately preceding sentence, as a User you must not: (a) share your Account Credentials for the Platform with any other individual or allow any third party to access or use the Platform under your Account Credentials; (b) sell, resell, license, sublicense, distribute, rent or lease the Service, include as a service bureau or outsourcing offering; (c) use the Service to store or transmit (i) infringing, libelous, or otherwise unlawful or tortious material, (ii) material in violation of third-party privacy or other rights, or (iii) viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines or code that may damage or detrimentally interfere with the Service or any data or personal information maintained on or in connection with the Service (“Harmful Code”); (d) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (e) attempt to gain unauthorized access to the Service or its related systems or networks (including in a manner intended to circumvent a contractual usage limit); (f) copy the Service or any part, feature, function or user interface thereof; (g) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Service; (h) frame or mirror any part of the Service (i) access the Service in order to build a competitive product or service, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (j) “harvest” or collect information from the Service (including information about other users of the Service or offerings, products or services available on the Service) using an automated software tool or manually on a mass basis; (k) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Service or any component thereof, except to the extent such restriction is permitted by applicable Law; (xii) integrate or link to any open source software or freeware with the Service; (l) remove any proprietary notices, labels or marks from the Service; or (m) permit third parties to do any of the foregoing.
PPMX may provide you with various open communication tools on its Site, including blog comments, forums, message boards, product ratings and reviews, and various social media services. For purposes of this Agreement, (i) “Publish” means to submit, supply, transmit, upload or otherwise provide, (ii) “ Site Content ” means data, information or materials Published to the Site by a User under this Agreement, and (iii) “Subscriber Data” means data, information or materials Published to the Platform by a User under this Agreement.
Subscriber represents, warrants and covenants to PPMX that (i) all Site Content and Subscriber Data any User provides to PPMX under Subscriber’s account will be accurate, correct, and up to date; (ii) Subscriber owns or otherwise has (and prior to PPMX’s receipt of Subscriber Data or Site Content, as applicable, will have) the necessary rights and consents in and relating to the Subscriber Data or Site Content, as applicable; and (iii) no User under Subscriber’s account will Publish on the Service any Subscriber Data or Site Content that is infringing, illegal, libelous, defamatory, obscene, abusive, fraudulent, deceptive, discriminatory, threatening, or an invasion of privacy; that contains unauthorized advertisements or solicitations to purchase or sell goods or services; or that impersonates any person or entity, including any PPMX employee or representative. Subscriber shall be solely responsible for, and assumes the risk of, any problems resulting from Subscriber Data or Site Content submitted by any User under Subscriber’s account.
PPMX does not have, and does not undertake, any obligation to prescreen, monitor, edit, or remove any Site Content Published on or through the Site by any User. However, PPMX retains the right (but not the obligation), in its sole discretion and for any reason, to prescreen, monitor, edit, remove, or move Site Content posted on or through the Site.
By submitting Site Content to the Site or Subscriber Data to the Platform, you automatically hereby grant PPMX: (i) a royalty-free, transferable, nonexclusive, worldwide right and license to publish, reproduce, modify, create derivative works from, incorporate into other works, distribute, and otherwise exploit any such Subscriber Data solely for the purpose of providing the Platform to Subscriber and its Users for the term of such Subscriber’s subscription to the Platform, with the right to sublicense the foregoing rights to PPMX’s service providers and agents for purposes of providing the Platform to PPMX’s customers; and (ii) a royalty-free, perpetual, irrevocable, transferable, sublicensable, nonexclusive, worldwide right and license, but not the obligation, to use, publish, reproduce, modify, create derivative works from, incorporate into other works, distribute, and otherwise exploit any Site Content (in whole or in part) worldwide in any form, media, or technology now known or hereafter developed.
PPMX may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Service, or suspend the Service or any portion thereof, without notice or liability to you or to any third party (except that, in the event of a scheduled suspension of the Service, PPMX will use reasonable efforts to provide you with actual notice – rather than merely constructive notice – as soon as commercially practicable under the circumstances). You agree that PPMX shall not be liable to you for any modification, or suspension of the Service or any features or functions thereof.
a. You agree to indemnify, defend and hold harmless PPMX and its affiliates, and it and their directors, officers, managers, employees, agents, and licensors (“Representatives”), from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees (collectively, “Losses”), incurred from any third-party actions, claims or proceedings to the extent arising out of: (i) your breach of this Agreement or violation of Law; (ii) an allegation that any Subscriber Data or Content, or the use thereof in connection with the Service and/or other subject matter of this Agreement, infringes, misappropriates, or otherwise violates a third party’s intellectual property rights or violates applicable Law; or (iii) an action against PPMX for defamation, libel, slander, or other tort claim based on Site Content or Subscriber Data you Published to the Service, in whole or part.
b. PPMX agrees to indemnify, defend and hold harmless Subscriber and its affiliates, and its and their Representatives, from and against all Losses incurred from any third-party actions, claims or proceedings to the extent arising out of any claim that any use of, or access to, the Platform by Subscriber, as expressly authorized under this Agreement, infringes or misappropriates, as applicable, any U.S. patent issued as of the date you enter into this Agreement or any copyrights or trade secrets under applicable Law.
c. A party seeking indemnification hereunder (the “Indemnified Party”) shall give the other party (the “Indemnifying Party”) (i) prompt written notice of such claim (provided that the failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent it is materially prejudiced by such failure); (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as the Indemnifying Party may reasonably request, at the Indemnifying Party’s expense, in connection with such defense and/or settlement. In any action for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnified Party may participate in such defense at its own expense by counsel of its choice.
a. Billing. PPMX bills all charges and applicable taxes and fees annually in advance, at the rates set forth in published materials or found on the Site. To activate Subscriber’s subscription to the Platform, Subscriber must either provide an executed Sales Order, Service Agreement, or Purchase Order. Subscriber will also be required to complete an Onboarding Form, where billing details and payment method can be specified. PPMX accepts payments via credit card, wire/ACH, and check.
b. Payment by Credit Card. If payment for a Platform subscription is by credit card, Subscriber authorizes PPMX to charge automatically any amounts payable by Subscriber in connection with Subscriber’s and its Users’ use of the Platform. Subscriber’s and its Users’ right to use the Platform is subject to any limits established by Subscriber’s payment card issuer or other applicable financial institution. This authorization remains valid until 30 days after Subscriber’s subscription to the Platform concludes, whereupon PPMX will charge Subscriber for any outstanding charges Subscriber has incurred and terminate Subscriber’s access to and use of the Platform. Subscriber grants PPMX permission to obtain authorization for use of Subscriber’s payment card from Subscriber’s payment card issuer. If Subscriber provides a payment card and Subscriber’s payment card expires, Subscriber closes Subscriber’s payment card account, Subscriber’s billing address changes, or Subscriber’s payment card is cancelled and replaced due to loss or theft, Subscriber must advise PPMX at once.
c. Annual Subscription Plans. The annual subscription fees for the Platform represent payment for 12 consecutive months commencing on the date Subscriber first activates the Platform subscription (“Subscription Start Date”). If Subscriber cancels its Platform subscription prior to the end of the annual period, Subscriber will not receive a refund or credit for the unused portion of Subscriber’s subscription period. All fees paid to PPMX are non-refundable. At the conclusion of the annual period, Subscriber’s subscription will automatically renew for a subsequent 12-month period at the then-current renewal price for the selected subscription, unless Subscriber chooses to switch to an alternate pricing plan or cancels its subscription to the Platform prior to the anniversary of the Subscription Start Date. If Subscriber elects credit card as their payment method during the initial subscription, the credit card on file will be charged at the time of the automatic annual renewal.
d. Price and Price Changes. Prices and charges relating to the Platform are posted on the Site. PPMX may change the prices and charges for the Platform from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Platform are effective no sooner than seven days (i) after posted on the Site or (ii) Subscriber is otherwise notified of the changes, including being sent an electronic notification to the email address registered on Subscriber’s account. Any price changes for Platform subscriptions will only take effect upon Subscriber’s renewal of its subscription to the Platform.
e. Failure to Pay. If payment is not received within the required time period, or if we are unable to renew Subscriber’s plan based on inaccurate or outdated payment method information, we may suspend Subscriber’s and its Users’ ability to access the Platform until payment is received, in which event no additional time will be added to the then-applicable subscription term.
f. Taxes. The subscription fees are exclusive of taxes. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on PPMX’s income, and when processing Subscriber’s payment, we may include a separate charge for such amounts. We will remit taxes collected, if any, to the appropriate taxing authority.
g. Billing Disputes. Subscriber must notify PPMX within seven days after receiving its credit card statement or invoice, as applicable, if Subscriber disputes any PPMX charges or any such dispute will be deemed waived.
a. PPMX represents and warrants that the Platform will conform in all material respects to the specifications set forth in the user documentation and other related materials pertaining to the Platform as provided in writing to you by PPMX. In the event the Platform fails to so perform at any time while you have an active subscription to the Platform and you so notify PPMX, PPMX will fix or replace the Platform or non-conforming portion thereof free of charge (“ Support Services ”). For the avoidance of doubt, Support Services do not include (i) visits to Subscriber’s facilities; (ii) any electrical, mechanical or other work with hardware, accessories or other devices associated with the use of the Platform; and (iii) any work with any third-party equipment, software, or services.
b. PPMX will employ reasonable measures to provide you with access to the Service. However, there will be occasions when the Service will be interrupted for maintenance, upgrades, emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond PPMX’s control. PPMX will take reasonable steps when possible to minimize such disruptions within PPMX’s control. You acknowledge and agree that credit allowances for interruption of the Service will not be provided.
c. EXCEPT AS SET FORTH ABOVE, THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND PPMX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER PPMX, NOR ANY PERSON ASSOCIATED WITH PPMX, MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE; THAT THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SERVICE IS FREE OF HARMFUL CODE; THAT THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS; OR REGARDING ANY HARDWARE OR EQUIPMENT THAT MAY BE REQUIRED TO USE THE SERVICE, INCLUDING WITH RESPECT TO THE PRODUCTS AND SERVICES SOLD BY BUSINESSES LISTED ON THE SITE.
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (a) NEITHER PARTY’S LIABILITY TO THE OTHER PARTY ARISING OUT, OF OR RELATED TO, THIS AGREEMENT WILL EXCEED THE TOTAL AMOUNT YOU PAID TO PPMX DURING THE LAST 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE UNDER THIS AGREEMENT, AND (b) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY LOSS OR DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER BY CONTRACT OR TORT, WHICH MAY BE AS A RESULT OF USING THE SERVICE, OR AS A RESULT OF ANY CHANGES, DATA LOSS OR CORRUPTION, CANCELLATION, LOSS OF ACCESS, OR DOWNTIME TO THE FULL EXTENT THAT APPLICABLE LAW APPLIES.
As between you and PPMX, (a) all title and intellectual property rights in and to the Service are owned exclusively by PPMX, subject to the rights granted herein, and (b) Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber Data and Site Content, including all intellectual property rights therein and thereto, subject to the licenses granted herein to PPMX. You are a subscriber to the Platform; the Platform is not sold to you. No title to or ownership of the Service, or any proprietary rights related to the Service, is transferred under or by virtue of this Agreement. PPMX reserves all rights in and to the Service not expressly granted to you under this Agreement. Further, this Agreement does not authorize you to use any name, trademark or logo of PPMX.
PPMX may suspend or terminate Subscriber’s access to the Service or to any features or portions thereof, or may terminate this Agreement, at any time if Subscriber violates this Agreement (including any failure to pay amounts when due), and PPMX shall use reasonable efforts to provide Subscriber with notice in such event. If PPMX suspends Subscriber’s access to the Service, PPMX shall promptly restore Subscriber’s access to and use of the Service after the event giving rise to the suspension has been resolved to PPMX’s satisfaction. If 30 days pass from the date of such suspension and Subscriber has not resolved the circumstances that led to the suspension, PPMX may permanently remove or delete any information that Subscriber may have on file with PPMX, including any Subscriber Data, Site Content or Account Credentials.
Subscriber may immediately terminate this Agreement at any time, for any reason, by providing 30 days’ prior written notice to PPMX of its intent to terminate this Agreement, however in such event Subscriber shall not receive any refund of fees already paid for the then-current subscription term.
For a period of three years from disclosure, each party shall safeguard and hold in strict confidence (other than disclosure to employees, agents, financial advisers, and independent contractors on a need-to-know basis), and not use for any purpose other than in connection with this Agreement, any information disclosed by a party to the other party that is specifically designated as confidential or proprietary in writing (except to the extent such information (a) is in or enters the public domain without breach of this Agreement; (b) the receiving party was in possession of such information prior to disclosure by the other party; (c) the receiving party can demonstrate such information was developed independently; or (d) the receiving party receives such information from a third party without restriction on disclosure and without breach of a nondisclosure obligation). Notwithstanding the foregoing, the receiving party may disclose the confidential information of the disclosing party to the extent required by law or court order; or as part of its normal reporting or review procedure or for other valid business purposes to the receiving party’s advisors, lenders, investors, or similar parties.
PPMX is based in the State of Texas in the United States. We make no claims that the Service is accessible or appropriate outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local Laws. The Service is subject to export controls under the laws and regulations of the United States and any other applicable countries’ laws and regulations. You agree to comply with such laws and regulations governing export, re-export, transfer, and use of the Service, and you shall obtain all required U.S. and local authorizations, permits, or licenses. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. U.S. Government End Users.
The Service is “commercial computer software” as defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense FAR Supplements (the “DFARS”). The Service was developed entirely at private expense and no part of the Service was first produced in the performance of a Government contract. If you are a U.S. Government agency, in accordance with FAR 12.212 and its successors or DFARS 227.7202 and its successors, as applicable, the Service is licensed to you subject to the terms of this Agreement.
This Agreement, as well as any dispute or claim arising out of or related to this Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) is governed by and shall be construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on the International Sales of Goods does not apply to this Agreement.
In the event of any conflict or claim arising out of or relating to any provision of this Agreement or breach thereof, the parties shall make a good faith effort to settle such conflict amicably between themselves. Any such conflict which the parties are unable to resolve shall be settled in accordance with the rules of the American Arbitration Association, except as set forth herein. The award or decision shall be rendered by a single arbitrator. A single arbitrator shall be agreed upon by you and PPMX, or if you and PPMX cannot agree upon an arbitrator within 30 days, then you and PPMX agree that a single arbitrator shall be appointed by the American Arbitration Association. Such arbitration proceedings shall be conducted in Houston, Texas. The award or decision through arbitration shall be binding upon you and PPMX and may be incorporated into and thereupon enforced as an order of a court of competent jurisdiction. Any and all proceedings to resolve claims or conflicts will be conducted only on an individual basis and not in a class, consolidated, or representative action, and you agree to this limitation as a condition of using the Service. If, for any reason, a claim proceeds in court rather than in arbitration, you waive any right to a jury trial. The Federal Arbitration Act, federal arbitration law and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 apply to this Agreement and any arbitral award granted in connection with a claim. An arbitration decision may be confirmed by any court of competent jurisdiction. Notwithstanding anything to the contrary herein, you may opt out of the foregoing arbitration provision by notifying PPMX of your desire to opt out, which writing must be dated, signed and delivered by U.S. Mail or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), or by hand delivery to: Legal Counsel, 224 S 200 W #100, Salt Lake City, UT 84101. In order to be effective, the writing must clearly indicate your intention to opt out of the foregoing arbitration provision, and the envelope containing the signed writing must be received (if delivered by hand) or postmarked within 30 days of the date you enter into this Agreement. Should you not opt out of the foregoing arbitration provision within such 30-day period, you shall be bound by the terms of the foregoing arbitration provision. You have the right to consult with counsel of Subscriber’s choice concerning the foregoing arbitration provision.
Any remedy of PPMX set forth in this Agreement is in addition to any other remedy afforded to PPMX under applicable Law or otherwise. PPMX’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of this Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without PPMX’s prior written consent. Any purported assignment in violation of this Section shall be void. PPMX may freely assign or otherwise transfer its rights or obligations under this Agreement. The terms and conditions of this Agreement shall apply to and be binding upon the approved successors and permitted assigns of the parties hereto. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement does not and is not intended to confer any rights or remedies upon any person other than you and PPMX and any additional parties indemnified hereunder. For all purposes of this Agreement, the words “including” and “includes” mean inclusion without limitation.
For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. All notices and demands pursuant to this Agreement must be in writing. Notices to you shall be effective upon receipt thereof and may be delivered via email to the email address you maintain in your account or by any other commercially reasonable manner to the mailing address for you on file with PPMX. Notice to PPMX shall be delivered only by email (Attn: Legal Counsel at firstname.lastname@example.org ). Notices under this Agreement shall be deemed effectively given when received. Any notice given otherwise than in accordance with this Section will be deemed ineffective. All other feedback, comments, requests for technical support, or other communications relating to the Service should be directed to the PPMX support team by emailing email@example.com.