Proggio Customer Agreement
This Proggio Customer Agreement (this “Agreement”) is entered into by and between Project
Map Ltd. and its affiliates (“Proggio”) and
customers logging into the Proggio app (“Customer”) on the first sign-up
date (the “Effective Date”).
- Definitions.
- “Confidential Information” means all information directly or indirectly
disclosed by either party (“Disclosing Party“), its affiliates,
business partners or their respective employees, contractors or agents to
the other party (“Receiving Party“), including without limitation
(a) nonpublic information relating to Disclosing Party’s or its
affiliates’ or business partners’ technology, customers, business plans,
promotional and marketing activities, finances and other business
affairs; (b) third-party information that Disclosing Party is obligated
to keep confidential; and (c) the nature, content and existence of any
discussions or negotiations between the parties and/or their affiliates.
Confidential Information does not include any information that: (i) is or becomes publicly available without breach of
this Agreement; (ii) can be shown by documentation to have been known to
Receiving Party at the time of its disclosure by Disclosing Party; (iii)
is received from a third party who did not acquire or disclose the same
by a wrongful or tortious act; or (iv) can be shown by documentation to
have been independently developed by Receiving Party without reference to
the Confidential Information. - “Content” means software (including machine images),
data, text, audio, video, images or any other content. - “Documentation” means any technical and operations manuals and
specifications for the Service Offerings, as may be amended by Proggio
from time to time. - “End Customer” means any individual or entity that directly or
indirectly through Customer: (i) accesses or
uses Customer Content; or (ii) otherwise accesses or uses the Service
Offerings under Customer’s account. - “Order Form” means price quote and additional terms mutually
approved by the Parties. - “Proggio Content” means Content Proggio makes available in connection
with the Service Offerings, including but not limited to Documentation,
code, guides, methodologies and related technology, and any other
content. - “Proggio Marks” means any trademarks, service marks, service or
trade names, logos, and other designations of Proggiothat
Proggio may make available to Customer in connection with this Agreement. - “Proggio Site” means Porgg.io; Proggio.com;
app.proggio.com and any successor or related site designated by
Proggio. - “Service Offerings” means the Proggio Content, the Proggio Marks,
the Proggio Site, and any other product or services provided by Proggio
under this Agreement. Service Offerings do not include Third Party
Content. - “Suggestions” means all suggested improvements and comments
to the Service Offerings that Customer provides to Proggio. - “Third Party Content” means Content made available to Customer by any
third party on the Service Offerings or in conjunction therewith. - “Customer Content” means Content Customer or any End Customer (i) post, submit, run on, or upload to the Service
Offerings, (ii) cause to interface with the Service Offerings, or (iii)
upload to the Service Offerings under Customer’s account or otherwise
transfer, process, use or store in connection with Customer’s account. - Service Offerings.
- Right to Access and Use. Proggio and/or its licensors (if any) own and
reserve all right, title, and interest in and to the Service Offerings.
During the Term Proggio grants Customer a limited, revocable,
non-exclusive, non-sub-licensable, non-transferable right to access and
use the Service Offerings solely in accordance with and subject to this
Agreement and under the terms set forth in the Order Form. Except as
explicitly provided herein, Customer does not obtain any right to the
Service Offerings, including any related intellectual property rights. - Restrictions. Neither Customer nor any End Customer may use
the Service Offerings in any manner or for any purpose other than as
expressly permitted in this Agreement. Neither Customer nor any End
Customer shall, or shall attempt to: (i)
modify, alter, tamper with, repair, or otherwise create derivative works
of the Service Offerings, or any part thereof; (ii) reverse engineer,
disassemble, or decompile the Service Offerings, or apply any other
process or procedure to derive the source code of any software included
in the Service Offerings; or (iii) access or use the Service Offerings in
a way intended to avoid incurring fees or exceeding usage limits or
quotas. All rights granted to Customer in this Agreement are conditional
on Customer’s continued compliance with this Agreement, and such rights
will immediately terminate if Customer does not comply with any of the
terms and conditions of this Agreement. - Customer Account. Customer is responsible for all activities that
occur under Customer’s account (including for any integration or any
other use of third party products or services – and associated disclosure
of data – in connection with the Service Offerings), regardless of
whether the activities are undertaken by Customer, Customer’s employees
or any third party and Proggio is not responsible for any unauthorized
access to Customer’s account. Customer will contact Proggio immediately
if Customer believes an unauthorized third party may be using Customer’s
account or if Customer’s account information is lost or stolen. - Integration with Third Party Services.
4.1 The Service Offerings enable Customer to integrate the
Customer’s account with certain third party services
offered via Proggio’s Service Offerings (“Third Party Services”). By integrating and/or using the Third Party Services,
Customer acknowledges and agrees that (i)
Proggio merely acts as an intermediary platform between Customer and such Third
Party Services, and Proggio does not, in any way, endorse and shall not be
responsible or liable regarding any such Third Party Services; (ii) Customer’s
use of the Third Party Services is governed by agreements between Customer and
the third party, including any applicable privacy policy (“Third Party Terms”)
and Proggio is not a party to and not responsible for such Third Party Terms; (iii)
Customer is solely responsible for its and its End Users’ compliance with the
Third Party Terms and with applicable privacy laws and regulations; and (iv)
any processing, storage or any other use of data by a Third Party Service is
governed by the Third Party Terms and Proggio is not responsible for any
processing, storage or any other use of data by the Third Party Service or for
such Third Party Service’s privacy and security practices
4.2 Third Party Services may be offered free of charge or
for a certain fee, as determined by Proggio from time to time. Any payment
terms are governed by Section 4 herein.
4.3 Each Proggio and the Third Party
Services reserves the right to discontinue the use or suspend the availability
of any Third Party Services, for any reason and with
no obligation to provide any explanation or notice. Such discontinuation may
result in the inability to utilize certain features and actions of the Third Party Services along with Proggio’s Service Offerings.
- Support to Customer. Proggio shal provide
technical support, on a basis of reasonable effort, all in accordance
with the terms set forth in the Proggio SLA and the subscription plan and
package, all as may be amended from time to time. - Planned Downtime. Customer acknowledges that Proggio may
occasionally bring down part or all of its
system for maintenance purposes. Proggio will make commercially
reasonable effort to inform Customer in advance of such planned downtime. - Professional Services. Subject to the terms and conditions of this
Agreement, Proggio may provide to Customer the professional services
(“Professional Services”) as set forth in one or more Order Forms
executed by the parties. Professional Services shall be considered part of
the Service Offerings for all purposes under this Agreement. Professional
Services may include, without limitation, implementation services,
training, consulting and other professional services as agreed between
the parties. Customer shall pay Proggio the fees for Professional
Services as specified in the applicable Order Form. Unless otherwise
specified in the Order Form: (a) Professional Services shall be provided
on a time and materials basis; (b) Professional Services will be
performed remotely; and (c) Customer shall reimburse Proggio for all
reasonable travel and out-of-pocket expenses incurred in connection with
the Professional Services. All Professional Services deliverables shall
be owned by Proggio and licensed to Customer under the same terms as the
Services under this Agreement. Proggio makes no commitment to provide any
Professional Services except as expressly set forth in an Order Form
executed by both parties. - Customer’s Representations.
- By accessing and/or using the
Service Offerings, Customer represents and warrants: (i)
that Customer is authorized to enter into this Agreement; (ii) that
Customer will fully comply with the terms and conditions of the
Agreement; (iii) that Customer will only let End Customers access and use
the Service Offerings who have provided Customer with written
confirmation to comply with the Agreement. Customer must keep records of
such written confirmations of End Customer and provide such records to
Company upon its first demand. Without derogating from the generality of
the foregoing, End Customer must undertake to especially be bound by the
Disclaimer (Section 10
hereof) and the Limitation of Liability (Section 11 hereof); (iv) that Customer Content is fully
compliant with any applicable law (including with Customer’s obligations
under any applicable privacy and data protection laws and regulations,
and the Digital Millennium Copyright Act, if applicable); (v) Customer
acknowledges that Proggio is not in any way liable for Customer Content.
It shall be clarified that Proggio is under no obligation to monitor any
Customer Content; and (vi) Customer is responsible to ensure
compatibility of Customer Content with the Service Offerings (e.g. with
the then current APIs) and for properly configuring and using the Service
Offerings and maintaining appropriate periodic backup of Customer
Content. - End Customer Violations. Customer will be deemed to have taken any
action of End Customer with respect to End Customer’s access and/or use
of the Service Offerings. Customer is responsible for End Customers’ use
of Customer Content and the Service Offerings. Customer will ensure that
all End Customers comply with Customer’s obligations under this Agreement
and that the terms of Customer’s agreement with each End Customer are
consistent with this Agreement. If Customer becomes aware of any
violation of Customer’s obligations under this Agreement by an End
Customer, Customer will immediately terminate such End Customer’s access
to Customer’s Content and the Service Offerings. - Payment.
- Service Fees. Customer shall pay Proggio the applicable fees
for use of the Service Offerings, in accordance with the applicable Order
Form, or if no Order Form exists, in accordance with Proggio’s payment
terms, as described on the Proggio Site (Proggio.com/pricing). Payment
will be made using one of the payment methods Proggio support. All
amounts payable under this Agreement will be subject to any deduction or
withholding required by law. Any changes to the fees will be mutually
agreed upon in writing by the parties hereto. - Taxes. All fees payable by Customer are exclusive of
applicable taxes, including VAT and applicable sales tax. Customer will
provide Proggio with any information Proggio reasonably requests to
determine whether Proggio is obligated to collect VAT from Customer,
including Customer’s VAT identification number. - Data Protection and Security.
- Customer represents and warrants
that it shall at all times comply and ensure that End User complies with
all data protection laws and regulations, and policies of regulatory
bodies or agencies, or any regulations implemented pursuant thereto, to
the extent applicable.With respect to Personal
Information (as such term is defined in the applicable data protection
laws and regulations) transferred to Proggio (and only to the extent such
Personal Information is transferred to Proggio) (i)
Customer shall obtain throughout the Term all necessary rights and
consents required under applicable data protection laws and regulations
to provide Personal Information to Proggio; (ii) to the extent the basis
of the collection of data is consent, Customer shall ensure that a record
of such consents is maintained, as required under applicable data
protection laws and regulations. - Accessing Customer Data. Proggio will not access or use any of Customer’s
data and/or Customer Content in rendering access to the Service
Offerings. For technical support purposes only, Proggio does have access
to Customer’s data in read-only mode. To the extent Proggio processes
Customer’s Personal Information, Proggio will process such Personal Information
in accordance with the terms and conditions of Proggio’s data processing agreement
a copy of which may be provided upon request and Proggio’s privacy policy
at Proggio.com/privacy-policy, available online, as may be amended from
time to time. - Application Hosting Platform and
Features. In order to
provide the Service Offerings, Proggio is using a Premium Enterprise
platform, including: High Availability, up to 7
days rollback, Encryption at REST and automatic failover. Other terms and
platform options are set according to the subscription plan and package,
and the Order Form. - Authentication. Proggio is offering password management, MFA
and SSO options for all enterprise plans. - Penetration Tests. Penetration tests are performed annually by third
party, and according to OWASP directions. - Confidentiality
Agreements. Proggio employees are signed on
confidentiality agreements and are going through periodic data protection
and security training. Vendors are signed on a confidentiality agreement
and are required to present relevant data protection certifications. - Term; Termination.
- Term. The term of this Agreement shall be as set
forth in the applicable Order Form, or if no Order Form exists, in
accordance with the term selected on the Proggio Site (the “Term”),
unless terminated in accordance with Section 6.2 below. - Termination.
- Termination for Cause. Either
party may terminate this Agreement for cause upon 30 days’ prior notice
to the other party in case of any material breach of this Agreement by
the other party, unless the defaulting party has cured the material
breach within 30 days after being notified about such material breach. - Immediate Termination. Without
derogating from anything herein, Proggio may terminate this Agreement
immediately upon notice to Customer upon the occurrence of one or more
of the following (as reasonably determined by Proggio) (i) if Customer’s and/or an End Customer’s use of the
Service Offerings poses a security risk to Proggio, the Service
Offerings or to any third party, or might otherwise adversely impact the
Service Offerings or the systems or Content of any other Proggio customer,
and/or may subject Proggio, or any third party to liability; (ii)
Customer have ceased to operate in the ordinary course of business, made
an assignment for the benefit of creditors or similar disposition of
Customer’s assets, or become the subject of any bankruptcy,
reorganization, liquidation, dissolution or similar proceeding; (iii) in
case Proggio’s relationship with a third party who provides software or
other technology, which Proggio uses in order to provide the Service
Offerings expires, is terminated or altered; (iv) if providing the
Service Offerings creates a substantial economic or technical burden or
material security risk for Proggio; (iv) in order to comply with
applicable law and/or requests of governmental entities. - Effect of Termination. Upon any expiration or termination of this
Agreement (i) Customer’s rights under this
Agreement shall immediately terminate; (ii) Customer shall immediately
make any outstanding payments owed to Proggio. It shall be clarified that
Customer shall not be entitled to any refund for any annual fees already
invoiced; and (iii) Customer will promptly return or, if instructed by
Proggio, destroy all Proggio Content in Customer’s possession; and (iv)
Sections 1,
6.3, 7, 8.1,
9-11 will survive any expiration or termination of this
Agreement. - Proprietary Rights.
- Service Offerings. All title, ownership rights, and intellectual
property rights (including all copyrights, patents, trade secret rights
and trademarks) in and to the Service Offerings shall remain in Proggio,
and/or its licensors, if any. Proggio expressly reserves all rights to
the foregoing, and except for the limited grant of rights expressly set
forth herein, Proggio does not grant Customer any right, title, or
interest in any intellectual property owned or licensed by Proggio. To
the extent, if any, that ownership of the Service Offerings, or any part
thereof, does not automatically vest in Proggio by virtue of the
Agreement, or otherwise, Customer hereby transfers and assigns to
Proggio, upon the creation thereof, all rights, title and interest
Customer may have in and to such Service Offerings (and waives any and
all moral rights, as applicable). - Customer Content. Customer represents and warrants that: (i) Customer and/or Customer’s licensors own all
right, title, and interest in and to Customer Content; (ii) Customer has
all rights in Customer Content necessary to grant the rights contemplated
by this Agreement. Except as otherwise provided in this section, Proggio
obtains no rights under this Agreement from Customer or Customer’s
licensors to Customer Content, including any related intellectual
property rights. Notwithstanding the foregoing, Customer grants Proggio a
revocable license to use Customer’s logo, trademarks, trade names, or
other designations of Customer for marketing purposes only during the
Term and thereafter. Customer may revoke such license at any time upon
reasonable notice. - Suggestions. If Customer provides any Suggestions to
Proggio, Customer hereby assigns to Licensor all right, title, and
interest in and to such Suggestions. Proggio may use such Suggestions
without any payment or restriction. - Indemnification.
- By Customer. Customer will defend, indemnify, and hold
harmless Proggio and its licensors, employees, officers, directors, and
representatives from and against any claims, damages, losses,
liabilities, costs, and expenses (including reasonable attorneys’ fees)
arising out of or relating to any third party claim concerning: (i) breach of this Agreement or violation of
applicable law by Customer and/or any End Customer; (ii) Customer
Content, including but not limited to any claim involving alleged
infringement or misappropriation of third-party rights by Customer
Content or by the use, development, design, production, advertising or
marketing of Customer Content; or (iv) any dispute between Customer and
any End Customer. - By Proggio. Proggio shall indemnify Customer against all
liabilities, costs, expenses, damages and losses (including any direct,
damages suffered or incurred by Customer arising out of or in connection
with any claim made against Customer for actual infringement of a third
party’s intellectual property rights arising out of or in connection with
use of the Service Offerings. Proggio shall have no obligations or
liability hereunder to the extent that the alleged infringement is based
on the Customer Content. Without derogating from the foregoing defense
and indemnification obligation, if Proggio believes that the Service
Offerings, may infringe, then Proggio may in its sole discretion: (i) obtain (at no additional cost to Customer) the
right to continue to use the Service Offerings; (ii) replace or modify
the allegedly infringing part of the Service Offerings so that it becomes
non-infringing while giving substantially equivalent performance; or
(iii) if the foregoing clauses (i) and (ii) are
not reasonably commercially feasible, terminate this Agreement
immediately, and in such event Customer shall receive a prorated refund
of any payments already made. This section states Proggio’s entire
liability and Customer’s exclusive remedy for any claims of infringement. - Indemnification
Conditions. The above defense and
indemnification obligations of the indemnifying party under this section
are subject to: (i) the indemnified party shall
promptly give written notice to the indemnifying party with
respect to any claims which may require an indemnification
under this Agreement; (ii) the indemnifying party being given immediate
and complete control over the defense and/or settlement of the claim
(however no compromise or settlement of any claim imposing financial
liability upon the indemnified party may be effected without the prior
written consent of indemnified party); and (iii) the indemnified party
providing cooperation and assistance, in the defense and/or settlement of
such claim and not taking any action that prejudices the indemnifying
party’s defense of or response to such claim. - Disclaimer. CUSTOMER
UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE SERVICE OFFERINGS AND/OR
ANY THIRD PARTY SERVICES AND/OR THIRD PARTY CONTENT ARE AT CUSTOMER’S OWN RISK. THE
SERVICE OFFERINGS AND/OR ANY THIRD PARTY SERVICES
AND/OR ANY THIRD PARTY CONTENT ARE PROVIDED ON AN
“AS IS” AND “AS AVAILABLE” BASIS. PROGGIO EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT DEROGATING FROM THE
GENERALITY OF THE FOREGOING, PROGGIO MAKES NO WARRANTY THAT (i) THE SERVICE OFFERINGS AND/OR ANY THIRD
PARTY SERVICES AND/OR ANY THIRD PARTY
CONTENT WILL MEET CUSTOMER’S EXPECTATIONS; AND (ii) THE SERVICE OFFERINGS
AND/OR ANY THIRD PARTY SERVICES AND/OR ANY THIRD PARTY CONTENT WILL BE UNINTERRUPTED, TIMELY,
SECURE OR ERROR-FREE. ANY SERVICE OFFERING AND/OR ANY THIRD PARTY SERVICES
AND/OR ANY THIRD PARTY CONTENT IS ACCESSED AT CUSTOMER’S OWN DISCRETION
AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVES
ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE THAT
RESULTS FROM THE SERVICE OFFERINGS ANY THIRD PARTY SERVICES AND/OR AND/OR ANY THIRD PARTY CONTENT. - Limitations of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD
PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA), EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT
DEROGATING FROM THE FOREGOING, EITHER PARTY’S
AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT
PROGGIO ACTUALLY RECEIVED BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICE
OFFERINGS THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE
CLAIM. - Miscellaneous.
- Entire Agreement. This Agreement constitutes the entire agreement
between the parties regarding the subject matter of this Agreement and
supersedes all prior or contemporaneous representations, understandings,
agreements, or communications between the parties, whether written or
oral, regarding the subject matter of this Agreement. If the terms of
this Agreement are in conflict with the terms
contained in any other document, the terms of this Agreement will
prevail. Notwithstanding the foregoing, in the event of any conflict
between this Agreement and the applicable Order Form, the terms of such
Order Form shall prevail. In case this Agreement is translated, this
English version of this Agreement will prevail over any translation. Any
modification to this Agreement shall be subject to a written agreement by
the parties. - Confidentiality. The Receiving Party will not disclose
Confidential Information of the Disclosing Party during the Term or at
any time during five (5) years following the end of the Term. - Publicity. Neither party will issue any press release or
make any other public communication with respect to this Agreement or the
use of the Service Offerings without the other party’s consent. Neither
party will misrepresent and/or express or imply that Proggio supports,
sponsors, endorses, or contributes to Customer or Customer’s business
endeavors. - Force Majeure. Neither party will be liable for any delay or
failure to perform any obligation under this Agreement where the delay or
failure results from any cause beyond such party’s reasonable control,
including acts of God, systemic electrical, telecommunications,
earthquake, storms or other elements of nature, blockages, embargoes,
riots, acts or orders of government, acts of terrorism, war, or pandemic
outbreaks. - Relationship of the Parties. The parties are independent contractors, and
neither party, nor any of their respective affiliates, is an agent of the
other party or has the authority to represent and/or bind the other
party. This Agreement does not create any third party
beneficiary rights in any individual or entity that is not a party to
this Agreement. - Notice. Any notice or communication required or
permitted to be given by either party hereunder, (a) if delivered by
hand, shall be deemed to have been received on the date of delivery; (b)
if sent by first class mail, shall be deemed to have been received on the
third business day following the date of mailing; and (c) if sent by
electronic mail or facsimile, be deemed to have been received on the date
the sender transmitted the notice or other communication. All
communications and notices to be made or given pursuant to this Agreement
must be in the English language. - Assignment. Neither party shall assign this Agreement, or
delegate or sublicense any of its rights under this Agreement, without
the other party’s prior written consent, except that either party may
assign this Agreement as a whole to a successor
to all or substantially all of its assets or
business related to this Agreement, without such consent. - Insurance. Proggio shall, at its own cost and expense,
acquire and maintain during the Term professional liability insurance,
and, upon Customer’s request, shall provide Customer with a certificate
of insurance evidencing such insurance. - Severability. If any portion of this Agreement is held to be
invalid or unenforceable, the remaining portions of this Agreement will
remain in full force and effect. Any invalid or unenforceable portions
will be interpreted to effect and intent of the original portion. If such
construction is not possible, the invalid or unenforceable portion will
be severed from this Agreement but the rest of
the Agreement will remain in full force and effect. - Governing Law; Venue. This Agreement shall be construed under the
laws of the State of Israel, and any dispute or claim with respect
thereto shall be submitted to the exclusive jurisdiction of the competent
courts in Tel-Aviv, Israel. The United Nations Convention for the
International Sale of Goods does not apply to this Agreement.
