Last Updated: Wednesday, December 30, 2020
License Grant, Restrictions, Use of Services
1.1 License. Subject to the terms and limitations set forth in this Agreement, the Company hereby grants Customer a limited, revocable, non-transferable, non-sublicensable license to access and use the Probo Services solely for website and software development testing and not for any production use whatsoever. Customer shall be responsible for all acts and omissions of persons who use the Probo Services (each, a “User”) and for ensuring their compliance with this Agreement. Customer shall immediately notify the Company of any loss or unauthorized access or use of a personal User ID or password.
1.2.1 No Service Bureau Use. Customer may use the Probo Services only for its internal organizational purposes and may not provide outsourcing, service bureau, application service provider or similar services to third parties.
1.2.2 Restricted Rights. The Probo Services and any related information are commercial computer software and commercial computer software documentation, and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the U.S. federal government’s rights to use, reproduce or disclose such software, documentation and other information are restricted in accordance with the terms and conditions of this Agreement. Use, duplication or disclosure by the U.S. federal government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
1.3 Reservation of Rights. All rights not expressly granted to Customer are reserved by the Company. Customer shall have no rights to receive any source or object code for the Probo Services, nor use the Probo Services except as expressly set forth in this Agreement.
1.4 Intended Use. Customer acknowledges that the Probo Services are intended solely for website and software development testing and for no other purpose. Customer shall not submit any production data to the Probo Services or any confidential or sensitive information, such as personally identifiable health or financial information. The Company shall have no liability whatsoever for any injuries, losses or damages arising from the use of the Probo Services, or any components or modifications thereof, for any other purpose, including any use with production data or any use in aircraft, weapons or missile systems, systems used in providing medical care, or systems used in connection with the operation or maintenance of nuclear plants.
1.5 Access and Use. Customer agrees to follow any policies made available within Probo Services. You may not misuse Probo Services. For example, don’t interfere with Probo Services, try to access them using a method other than the interface and the instructions that we provide, or extensively or automatically copy any content from Probo Services (no scraping). You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing Probo Services to you for any reason, including for non-compliance with our terms or policies or if we are investigating suspected misconduct.
1.6 Messages. In connection with your use of the Probo Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications, for example, by clicking on the “unsubscribe” link in marketing e-mails. Please be aware that there may be a brief period before we are able to process your opt-out, but we will always respect your legal rights to opt out of receiving unwanted messages.
1.7 Modifying and Terminating Probo Services. We are constantly changing and improving the Probo Services. We may add or remove functionalities or features, and we may suspend or stop a part or all of the Probo Services altogether. You can stop using the Probo Services at any time, although we’ll be sorry to see you go. We may also stop providing the Probo Services to you, or add or create new limits to the Probo Services, at any time.
The Probo Services furnished under this Agreement are licensed, not sold, to Customer. The Company possesses all right, title and interest in and to the Probo Services and any copyrights, patents, trademarks, service marks, trade names, trade dress, trade secrets and any other proprietary rights that are associated with the Probo Services throughout the world, and Customer acknowledges that it receives no right, title or interest to the Probo Services except for the limited rights provided within this Agreement. The Company also retains title to any and all copies made of any embodiments or features of the Probo Services, and upon any termination of this Agreement, all such copies must be returned to the Company or destroyed, at the Company’s instruction. You may not copy, modify, distribute, sell, or lease any part of Probo Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission, for example, if we make software available under an open source license.
Customer agrees not to contest the Company’s title and intellectual property rights in or to the Probo Services.
All discoveries, developments, techniques, advice, feedback, suggestions, improvements and similar information developed or provided as a result of Customer’s access to the Probo Services shall be the sole property of the Company. The Company shall be the sole owner of all patents, copyrights, and other rights arising therefrom or in connection therewith, and may freely use, sell and exploit the foregoing information without the consent of Customer or any obligation to render an accounting or share profits or royalties.
Content You Submit
Some of Probo Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.
When you upload or otherwise submit content to Probo Services, you give the Company (and those we work with) a royalty-free, worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with Probo Services), communicate, publish, and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Probo Services, and to develop new ones. This license continues even if you stop using the Probo Services. Make sure you have the necessary rights to grant us this license for any data or content that you submit to Probo Services.
Intellectual Property Protection
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do so. If you are a copyright owner or its agent and believe that any content residing on or accessible through the Probo Services infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
Identification of the work or material being infringed.
Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:
The specific URLs of material that we have removed or to which we have disabled access.
Your name, address, telephone number, and email address.
A statement that you consent to the jurisdiction of U.S. District Court for the Eastern District of Pennsylvania, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to the Probo Services.
The contact information for our Designated Agent is:
Attention: Copyright Agent
1 SOUTH BROAD ST, FLOOR 22, PHILADELPHIA, PA 19107
If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at email@example.com. We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of the Company or others, and/or to remove, delete, edit or disable access to such person’s content. You agree that we have no liability for any action taken under this section.]
6.1 No Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THESE TERMS, THE PROBO SERVICES, INCLUDING ANY DOCUMENTATION, ARE PROVIDED “AS IS,” THE COMPANY MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND THE COMPANY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR UNINTERRUPTED OR ERROR-FREE OPERATION; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR STATUTORY REMEDY. NO STATEMENT WHETHER MADE BY THE COMPANY’S EMPLOYEES, AGENTS OR OTHERWISE SHALL BE DEEMED TO BE A WARRANTY BY THE COMPANY FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF THE COMPANY. CUSTOMER’S RECEIPT AND USE OF THE PROBO SERVICES ARE ENTIRELY AT CUSTOMER’S OWN RISK.
6.2 Customer Warranty. Customer warrants to the Company that: (i) it has the legal power and authority to enter into this Agreement; (ii) Customer and the Users shall at all times comply with any privacy, data security and other laws and regulations applicable to their activities and geographic territory; and (iii) Customer and the Users shall not upload, submit, store, publish or distribute any unlawful, infringing or libelous content or material using the Probo Services, or any content or material that contains viruses, worms, Trojan horses, malware or other surreptitious, harmful or invasive code.
You hereby agree to indemnify, defend and hold harmless the Company, its affiliated companies, and their respective directors, officers, employees, agents, representatives, partners, contractors, successors and assigns from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of your actual or alleged breach of the Agreement or your use or misuse of the Probo Services, or any content or data submitted by Users through the Probo Services.
Limitation of Liability.
8.1 Limitation of Liability. WHEN PERMITTED BY LAW, THE COMPANY AND OUR AFFILIATES WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF THE COMPANY AND OUR AFFILIATES FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT OR RELATING TO YOUR USE OF THE PROBO SERVICES IS LIMITED TO, IN THE AGGREGATE, THE GREATER OF (1) THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE PROBO SERVICES AGAIN) OR (2) USD $50.
IN ALL CASES, THE COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, ACTS OF THIRD PARTIES, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
8.2 Material Part of Agreement. Customer agrees that the disclaimer of warranties and limitations of liability in this Section 8.2 are a material inducement and consideration for the Company to enter into this Agreement and provide the Probo Services. Accordingly, such provisions shall be enforced as written even if a remedy fails of its essential purpose.
9.1 Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed in all respects by the laws of the Commonwealth of Pennsylvania, USA, without giving effect to principles of conflicts of laws. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Any controversy or dispute arising under or related to this Agreement shall be adjudicated in the state and federal courts in and for Philadelphia, Pennsylvania (including their applicable appellate courts), and each party consents to the exercise of jurisdiction and venue by such courts; provided, however, that either party may seek temporary or emergency injunctive relief in any court of competent jurisdiction to protect and preserve its rights in its intellectual property.
9.2 Notices. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, e-mail, overnight mail or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment or confirmation of delivery of e-mail or facsimile transmission. Notices to the Company shall be sent to the address set forth in the preamble to this Agreement (or such other address as the Company designates by notice sent pursuant to this paragraph), and shall be addressed to the Company’s CEO with a copy (which shall not constitute notice) to the attention of Andrew Baer, Esq., at Baer Crossey McDemus LLC, 1500 Walnut Street, Suite 501, Philadelphia, PA 19102. All notices to Customer may be sent to the latest business or e-mail address associated with Customer’s account.
9.3 No Agency. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties in this Agreement.
9.4 Waiver. If one party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time. To be effective any waiver must be in writing and executed by an authorized signatory of the party to be charged.
9.5 Severability. If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted if possible to accomplish the intent of the provision within the constraints of the law. Only that provision that is deemed unenforceable or invalid, and not the entire Agreement, shall be invalidated.
9.6 Assignment. Customer may not assign this Agreement, in whole or in part, to any third party or agency without the prior written consent of the Company. The Company may assign or delegate this Agreement, in whole or in part, without consent at any time. The Company may also, without notice, utilize subcontractors and agents to provide aspects of the Probo Services.
9.7 Modifications. We may modify these terms or any additional terms that apply to Probo Services to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly and the “Last Updated” date at the beginning of these terms. We’ll post notice of modified additional terms in the Probo Services, or notify you by email. Changes will not apply retroactively and will become effective no sooner than ten (10) days after they are posted. However, changes addressing new functions for Probo Services or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for Probo Services, you should discontinue your use of Probo Services. If there is a conflict between these terms and any additional terms for the Probo Services, the additional terms will control for that conflict.
9.8 Entire Agreement. This Agreement supersedes all previous agreements and understandings, whether oral or written, between Customer and the Company with respect to its subject matter. To the extent that any terms set forth in any other terms conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly provided for by the Company.
9.9 Export Compliance. Regardless of whether Customer is a US-based entity, Customer shall not export or re-export any of the Probo Services (in whole or in part) to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government, or similar laws governing the export of software or products of any other government having jurisdiction over such export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order. Customer agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure of such compliance shall constitute a material breach of this Agreement.
9.10. Electronic Execution and Disclosures. Customer acknowledges and agrees that by clicking on the button labeled “I Agree” or “I Accept” or such similar or equivalent buttons, checkboxes or links as may be designated by the Company to accept this Agreement hereunder, Customer is submitting a legally binding electronic signature and is entering into a legally binding contract. Customer acknowledges that Customer’s electronic submissions constitute Customer’s agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PROBO SERVICES OFFERED BY THE COMPANY. Further, Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.