ProStruct360 Terms and Conditions

Terms and Conditions Agreement

Last updated: November 27, 2023

The following ProStruct360 Terms and Conditions Agreement (together with an applicable Order Form issued hereunder, collectively, the “Agreement”), effective on the date use of the 360 Suite (as defined below) first commences (“Effective Date”), is between you and ProStruct360, LLC, its affiliates, and its subsidiaries (collectively, “ProStruct360”). This is a legal agreement between you and ProStruct360 and incorporates ProStruct360’s Privacy Policy. By using any part of the 360 Suite, continuing to use any part of the 360 Suite, submitting any information through the 360 Suite, or downloading or using the Application (as defined below), and in consideration for ProStruct360 providing the 360 Suite to you, YOU ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT GOVERNING THE USE OF THE 360 Suite. Use of the 360 Suite is offered to you conditioned on acceptance, without modification, of the terms, conditions, and notices, including the class action waiver, contained herein.

If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.

1. Definitions

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.

1.2 “Application” means the application(s) made available by ProStruct360, from time to time, in order to access the 360 Suite from a mobile device.

1.3 “Authorized User” means an individual who is authorized by Customer to use the 360 Suite under Customer’s account. Authorized Users may include, without limitation, Customer’s or its Affiliate’s employees, consultants, contractors, and agents.

1.4 “Customer” means the customer named in the relevant Order Form, or the account holder for Koppr Payment Services.

1.5 “Customer Data” means all information submitted by or on behalf of a Customer (including by its Authorized Users) through the 360 Suite or in connection with the use of Koppr Payment Services, including, but not limited to, Customer name and contact details, subcontractor names and contact details, Qualifying Purchase Data, location data and all associated job information, messages, attachments, files, tasks, to-do’s, daily logs, invoices, purchase history, photographs, videos, plans, blueprints, drawings, specifications, Registered Client Data, and other similar content.

1.6 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.7 “Improvements” means new versions, features, functionality, enhancements, upgrades, error corrections, and bug fixes to the 360 Suite made generally available to its customers by ProStruct360, from time-to-time, at no additional charge.

1.8 “Order Form” means an ordering document or an online order provided by email or through the 360 Suite interface specifying the parts of the 360 Suite to be provided by ProStruct360 to Customer under this Agreement.

1.9 “Registered Client” means an individual who has been invited to use the client-facing or subcontractor communication features of the Service in a limited capacity as a client or subcontractor of a Customer.

1.10 “Registered Client Data” means information submitted by a Registered Client through the Service, including all associated job information, messages, attachments, files, tasks, to-dos, daily logs, photographs, videos, purchase history, names, address, contact information and other similar content.

1.11 “Service” means ProStruct360’s construction management software as a service platform, including any Improvements and Applications made available to Customer with respect to the construction management software as a service platform.

1.12 “360 Suite” means all of the services and programs through ProStruct360’s software as a service platforms under this Agreement, including but not limited to the Service, ProStruct Alliance, and Koppr Payment Service.

1.13 “Subscription” means the access to the Service purchased by Customer as set forth in an applicable Order Form.

1.14 “Subscription Fee” means the fee(s) for Customer’s subscription to the Service as set forth in an applicable Order Form.

1.15 “Subscription Term” means the period identified in the Order Form during which Customer’s Authorized Users and Registered Clients are permitted to use or access the Service pursuant to the terms set forth in this Agreement.

1.19 “Support Services” means the customer success services provided by ProStruct360.

2. The 360 Suite

2.1 Provision of the 360 Suite. During the applicable Subscription Term, ProStruct360 shall make the Service or 360 Suite purchased under an applicable Order Form available to Customer, its Authorized Users, and Registered Clients pursuant to the terms of this Agreement. The 360 Suite will include the Rebate Program and the features and functionality applicable to the version of the Service ordered by Customer. ProStruct360 may update the content, functionality, and user interface of the 360 Suite from time to time in its sole discretion.

2.2 Access Rights. ProStruct360 hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement), revocable right to access and use the 360 Suite, pursuant to the terms of this Agreement, during the applicable Subscription Term.

2.3 Usage Rights.  Customer agrees to access and use the 360 Suite only for its own internal business purposes in accordance with this Agreement and any program rules or other documentation made available to Customer.  Customer shall not (a) make the 360 Suite available to, or use the 360 Suite for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the 360 Suite; (c) reverse engineer, disassemble, decompile, create derivative works from, copy, modify, adapt, hack the 360 Suite, or otherwise attempt to gain unauthorized access to the 360 Suite or their related systems or networks; (d) publicly display or distribute the 360 Suite, including, but not limited to, distribution of screenshots, screen captures, or videos of the 360 Suite; (e) access the 360 Suite or ProStruct360’s Confidential Information to build a competitive product or service; (f) alter, hide or remove, or permit any third party to alter, hide or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the 360 Suite; (g) allow Authorized User Subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User Subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the 360 Suite for any purpose, whether by termination of employment or other change in job status or function); (h) purchase any services through the 360 Suite that are prohibited in Customer’s jurisdiction; (i) use any software, devices, scripts, crawlers, robots, or other automated processes to copy, scrape, or systematically acquire any content contained within the 360 Suite without the express written consent of ProStruct360, or (j) access or use the 360 Suite: (1) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (2) in violation of applicable laws; (3) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (4) in a manner that interferes with or disrupts the integrity or performance of the 360 Suite (or the data contained therein).

2.4 Login Credentials; Responsibility for Use. As part of setting up its account for access to the 360 Suite, Customer will be required to register and create one or more usernames and passwords for its Authorized Users (its “Login Credentials”). Customer is responsible for safeguarding its Login Credentials and limiting access to its Login Credentials to Customer’s Authorized Users. Customer will ensure that such Authorized Users with access to Login Credentials are aware of and comply with the applicable terms of this Agreement when using the 360 Suite. Customer will be solely responsible for any activity initiated or taken through or with respect to the 360 Suite by its Authorized Users or otherwise using Customer’s Login Credentials.

2.5 Administration of Customer’s Account.  Customer may specify an Authorized User to be the billing owner and one or more Authorized Users to be administrators (each an “Administrator”) to manage its account, and ProStruct360 is entitled to rely on communications from an Administrator when servicing Customer’s account. Customer’s Administrator(s) may have the ability to access, monitor, use, and/or export Customer Data or Registered Client Data. In the event that Customer is unable to log into ProStruct360 as an Administrator (for example, Customer has lost the Administrator password), then Customer authorizes ProStruct360 to request the following information, and other information if needed, in order to restore Administrator access: (i) a copy of Customer’s business license, and (ii) a copy of the State issued driver’s license of the individual named on Customer’s business license. ProStruct360 shall be entitled to rely upon the authenticity of any such documents delivered to it pursuant to this paragraph.  Customer is responsible for use of the 360 Suite by its Authorized Users and Registered Clients and for their compliance with this Agreement.

2.6 Compliance.  Customer will comply with all laws applicable to it in connection with this Agreement and the use of the 360 Suite by Customer. 

2.7 Suspension. ProStruct360 may suspend Customer’s or any Authorized User’s access to the 360 Suite if the Customer or Authorized User (a) violates this Agreement; or (b) uses the 360 Suite in a manner that ProStruct360 reasonably believes may cause a security risk, a disruption to others’ use of the 360 Suite, or liability for ProStruct360; or (c) uses the 360 Suite for suspected fraudulent or illegal activities.  ProStruct360 may suspend Customer’s access to the 360 Suite if any vendor of ProStruct360 has suspended or terminated ProStruct360’s access to or use of any third-party services or products required to enable ProStruct360 to provide the 360 Suite, as applicable. ProStruct360 reserves the right to suspend and/or delete any non-paid service due to inactivity. ProStruct360 will have no liability for any damage, liability, loss (including loss of data or profits) or any other consequence that Customer may incur as a result of a suspension.

3. Warranties

3.1 By Customer. Customer warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; (b) it has obtained all legally and contractually required consents and permissions for (i) the transfer, submission and processing of any and all data submitted by or on behalf of Customer through the 360 Suite including, but not limited to Customer Data and Registered Client Data, and (ii) the use by ProStruct360 of any Customer Data (including Registered Client Data) in accordance with this Agreement and the Privacy Policy; and (c) the transfer and processing of Customer Data (including Registered Client Data) pursuant to this Agreement complies with all applicable laws.

3.2 By ProStruct360. ProStruct360 warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (b) its performance hereunder will not conflict with any other agreements with third parties.

3.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE APPLICATION, THE 360 SUITE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ProStruct360 AND ITS AFFILIATES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE AND NON-INFRINGEMENT NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE AND ProStruct360 DOES NOT WARRANT THAT THE 360 SUITE OR THE APPLICATION WILL MEET CUSTOMER’S NEEDS. CUSTOMER ACKNOWLEDGES THAT ProStruct360 DOES NOT WARRANT THAT THE APPLICATION OR THE 360 SUITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. ProStruct360 IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD-PARTY HOSTING SERVICE PROVIDERS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE AND THE FEES CHARGED FOR THE 360 SUITE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY IN ALL CIRCUMSTANCES. ProStruct360 does not warrant that an Application or the 360 Suite will be compatible with all devices. If an Application or the 360 Suite is accessed through a mobile device, the relevant wireless service carrier may charge applicable data rates and related fees.  Customer acknowledges that the 360 Suite may be unavailable from time to time during planned or emergency downtime.

3.4 Device and Wireless Carrier Disclaimers. While ProStruct360 attempts to provide the 360 Suite and Application features to all users, use of an Application and the 360 Suite may be limited for some or all users due to conditions outside of ProStruct360’s control. As a result, not all advertised features may be available at all times. Some of these conditions include, but are not limited to, the following: an individual’s mobile device or their wireless carrier may limit the features available. Data or messaging plans may limit certain use of the Service. An individual’s wireless voice and/or data signal may make access to the Application or 360 Suite of its features intermittent or unavailable. The Application and its features may not be available in some geographic locations. ProStruct360 is not liable, and expressly disclaims any representations or warranties, regarding access to any Application or its Services or features through a particular wireless carrier, network, or plan, on a particular device, or in a particular location. ProStruct360 does not guarantee that the 360 Suite will always be accessible or available. Customer and its Authorized Users and Registered Clients are each solely responsible for any and all costs each party incurs to access an Application through their own mobile device.

4. Fees and Payment

4.1 Subscription Fees. Customer’s Subscription Fees and other fees are set forth in the applicable Order Form delivered to Customer by ProStruct360. All fees, including Subscription Fees, are subject to change upon notice. Customer shall pay all fees, including Subscription Fees, when due and is responsible for providing complete and accurate billing information to ProStruct360. If such fees are paid via credit card or other electronic means, Customer authorizes ProStruct360 to charge such fees using any of Customer’s available payment methods on file. All payment obligations are non-cancelable and all fees paid are non-refundable unless otherwise expressly provided for herein. The number of Authorized Users purchased under a Subscription cannot be decreased during the applicable Subscription Term. ProStruct360 reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue. Suspension shall not relieve Customer’s obligation to pay all amounts due. If Customer believes any charged fees, including Subscription Fees, are unauthorized, Customer must notify ProStruct360 of the unauthorized charge within sixty (60) days of the date of the Order Form containing that charge. If Customer does not notify ProStruct360 within sixty (60) days of the date of the Order Form containing that charge, the charged fees will be considered entirely correct and Customer may not hold us responsible. In some situations, Customer may authorize certain fees to be charged outside of those on an applicable Order Form; in those situations, the terms and conditions of this Section 4.1 continue to apply.

4.2 AUTO-RENEWAL. CUSTOMER AGREES THAT ITS SUBSCRIPTION WILL AUTOMATICALLY RENEW AFTER THE INITIAL SUBSCRIPTION TERM ENDS (THE “RENEWAL DATE”) AT THE THEN-CURRENT SUBSCRIPTION FEE OR AS QUOTED BY ProStruct360. MONTHLY SUBSCRIPTIONS WILL RENEW FOR THE SAME SUBSCRIPTION TERM. IF CUSTOMER HAS AN ANNUAL SUBSCRIPTION TERM, ProStruct360 WILL NOTIFY CUSTOMER BY EMAIL OR PHONE AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE SUBSCRIPTION TERM TO INQUIRE WHETHER CUSTOMER WOULD LIKE TO RENEW FOR AN ANNUAL OR MONTHLY SUBSCRIPTION TERM. CUSTOMER AUTHORIZES ProStruct360 TO AUTOMATICALLY CHARGE CUSTOMER FOR THE APPLICABLE FEES, INCLUDING SUBSCRIPTION FEES, ON OR AFTER THE RENEWAL DATE UNLESS THE SUBSCRIPTION HAS BEEN TERMINATED OR CANCELLED IN ACCORDANCE WITH THIS AGREEMENT. IF CUSTOMER WISHES TO REDUCE THE NUMBER OF AUTHORIZED USERS FOR THOSE CUSTOMERS ON THE USER BASED PRICING PACKAGE, IN ITS SUBSCRIPTION, IT MUST DO SO PRIOR TO THE RENEWAL DATE. CUSTOMER MUST CANCEL ITS SUBSCRIPTION PRIOR TO THE RENEWAL DATE IN ORDER TO AVOID BEING CHARGED THE APPLICABLE SUBSCRIPTION FEE FOR THE RELEVANT SUBSCRIPTION TERM ON THE RENEWAL DATE. IF CUSTOMER WOULD LIKE TO CANCEL ITS SUBSCRIPTION OR ADDITIONAL TRAINING, PLEASE SEE THE CANCELLATION PROCESS SET FORTH IN SECTION 4.3 BELOW.

4.3 CANCELLATION. CUSTOMER MUST CANCEL ITS SUBSCRIPTION PRIOR TO THE RENEWAL DATE IN ORDER TO AVOID BEING CHARGED THE APPLICABLE SUBSCRIPTION FEE FOR THE RELEVANT SUBSCRIPTION TERM ON THE RENEWAL DATE. IF CUSTOMER ATTEMPTS TO CANCEL ITS SUBSCRIPTION DURING THE SUBSCRIPTION TERM, CUSTOMER WILL NOT BE ISSUED A REFUND FOR THE MOST RECENT SUBSCRIPTION FEE OR ANY PREVIOUSLY CHARGED FEES AND THE SUBSCRIPTION WILL TERMINATE ON THE NEXT APPLICABLE RENEWAL DATE. TO INITIATE A CANCELLATION, CUSTOMER OR AN ADMINISTRATOR ON CUSTOMER’S ACCOUNT MUST NAVIGATE TO THE COMPANY PREFERENCES PAGE, AND SELECT THE ‘QUOTES’ SUBSCRIPTION TO DOWNGRADE TO THE FREE VERSION OF OUR SOFTWARE. THIS COMPANY PREFERENCES PAGE IS USED TO CANCEL ANY OTHER SERVICES PURCHASED IN THE 360 SUITE. IF CUSTOMER PREFERS TO DELETE THEIR ACCOUNT INSTEAD OF DOWNGRADING TO THE FREE ‘QUOTES’ SUBSCRIPTION LEVEL, CUSTOMER MUST NOTIFY ProStruct360 IN WRITING WITH A THIRTY (30) DAY NOTICE.

4.4 Calculation. Subscription Fees are based on annual or monthly periods that begin on the Subscription start date and each annual or monthly anniversary thereafter. Where applicable, Customer shall purchase a Subscription to the Service for each Authorized User for those Customers on the user based pricing package, as reflected in the applicable Order Form. Where applicable, Customer may add Authorized Users for those Customers on the user based pricing package to its Subscription at any time on written notice to ProStruct360 (email notice is acceptable). If Customer has an annual Subscription Term, the fees for additional Authorized Users for those Customers on the user based pricing package will be calculated at the then-current fee multiplied by the months remaining in the Customer’s Subscription Term. ProStruct360 reserves the right to calculate the total number of Authorized Users for those Customers on the user based pricing package periodically and, if the number of Authorized Users for those Customers on the user based pricing package exceeds Customer’s current Subscription, then ProStruct360 reserves the right to invoice Customer for the applicable number of users for the remaining period in Customer’s Subscription Term so that all Authorized User Subscription Terms coincide and are co-terminus. ProStruct360 reserves the right to revise fee rates and/or the billable amount structure for the Service at any time. ProStruct360 may charge Customer the then-current pricing for the applicable Subscription if the number of Authorized Users for Customers on the user based pricing package is modified, if Customer changes its Subscription plan, and/or on the next Renewal Date. Any subscription upgrade made during the term will incur a charge of the difference between the original subscription price and the new subscription price. This will reset the renewal date to the date of the upgrade or date listed on the Order Form.

4.5 Taxes. Any fees charged to Customer are exclusive of taxes. Except for those taxes based on ProStruct360’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service or the 360 Suite be subject to withholding tax by any government, Customer shall reimburse ProStruct360 for such withholding tax.

4.6 Future Features and Functionality. Customer acknowledges and agrees that any purchases under this Agreement are not contingent upon the delivery of any future feature or functionality or dependent upon any oral or written public or private comments made by ProStruct360 regarding future features or functionality. ProStruct360 may release Improvements and other features and functionality at its discretion.

5. Term and Termination

This Agreement commences on the Effective Date and shall remain in effect until all Subscriptions to the Service used by you and granted in accordance with this Agreement have expired or been terminated. Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party, except that termination will take effect immediately upon notice in the event of a breach of Section 2.3 (Usage Rights); or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Additionally, ProStruct360 may terminate this Agreement immediately upon notice to Customer at any time and for any reason or no reason. Upon expiration or termination of this Agreement for any reason, all Subscriptions and any other rights granted to Customer under this Agreement shall immediately terminate, and ProStruct360 may immediately deactivate Customer’s account(s) associated with the Agreement. In no event will any termination relieve Customer of the obligation to pay any fees accrued or payable to ProStruct360. The following sections shall survive expiration or termination of this Agreement: Section 1 (Definitions), Section 2.3 (Usage Rights), Section 3 (Warranties), Section 4.1 (Subscription Fees), Section 4.5 (Taxes), Section 5 (Term and Termination), Section 6 (Confidentiality), Section 7 (Intellectual Property Rights), Section 13 (Indemnification), Section 14 (Liability), Section 15 (Export Compliance), Section 16 (Use Outside the United States of America), Section 17 (Data Use), and Section 19 (Miscellaneous).

6. Confidentiality

6.1 Definition of Confidential Information. During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, information exchanged through the Service and 360 Suite and any Order Form(s) entered into by the parties, Customer Data, Registered Client Data, any information exchanged through the Rebate Program (including Rebate amounts and terms) or Koppr Payment Services, results, business plans, project plans and roadmaps, schedules, forecasts, purchase orders, billing, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.

6.2 Protection of Confidential Information. Except as otherwise expressly permitted under this Agreement or the Privacy Policy, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not use, disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care as is necessary to maintain confidentiality and privacy over any Confidential Information in its possession.   The receiving party may disclose the disclosing party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Each party may use the other party’s Confidential Information as necessary to perform its obligations under this Agreement. Either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.  Nothing in this Section 6.2 shall prohibit ProStruct360 from using Customer Data and Registered Client Data in accordance with the terms of this Agreement and the Privacy Policy.

6.3 Equitable Relief. The receiving party acknowledges that the remedy at law for breach of this Section 6 may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 6 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 6 in addition to any other remedy to which the disclosing party is entitled at law or in equity.

6.4 Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

6.5 Sensitive/Personal Information. Customer agrees that it shall not use the 360 Suite to send or store personal information that is subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).

7. Intellectual Property Rights

7.1 By Customer. As between Customer and ProStruct360, Customer retains all right, title, and interest in its Intellectual Property Rights, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights, in the Customer Marks.  Customer hereby grants ProStruct360 a non-exclusive, royalty-free license for the Subscription Term to (i) use, copy, modify, adapt, perform and display the Customer Content as necessary for the purposes that such Customer Content was provided in connection with the 360 Suite, and (ii) use and display Customer Marks as part of the 360 Suite, subject to any branding guidelines provided by Customer to ProStruct360. “Customer Content” means any information, materials or content provided by or for Customer for use on or through the 360 Suite. “Customer Marks” means Customer’s name, logos, trademarks, and service marks provided by Customer for use on or in connection with the 360 Suite.

7.2 By ProStruct360. ProStruct360 owns and will continue to own all right, title, and interest in and to its Intellectual Property Rights and in and to its Confidential Information, the Service, the 360 Suite (including but not limited to any usage and intellectual property rights associated with Koppr Payment Services), and any related documentation, including any Improvements, enhancements, customizations, or modifications thereto. Except for the rights expressly granted in this Agreement, all rights, title and interest in and to the Service, the 360 Suite (including Koppr Payment Services), and any related Intellectual Property Rights are hereby reserved by ProStruct360, its affiliates and its licensors. Customer may not use the logos, trademarks, service marks or similar Intellectual Property Rights of ProStruct360 or Koppr Payment Services for marketing or other purposes without ProStruct360’s prior written consent.

7.3 Suggestions. ProStruct360 welcomes feedback from Customers about the 360 Suite. If Customer (including any Authorized User or Registered Client) provides ProStruct360 with any ideas, suggestions, documents, proposals or feedback regarding the 360 Suite (“Feedback”), Customer agrees as follows: (i) Customer grants ProStruct360 an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, disclose, prepare derivative works, publish, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer, any Authorized User, or any Registered Client provided that ProStruct360 shall not identify Customer, any Authorized User, or any Registered Client as the source of such Feedback, and (ii) the Feedback does not contain any confidential information of third parties, and (iii) ProStruct360 is under no obligation of confidentiality, express or implied, with respect to the Feedback.

8. Mobile Application License

8.1 License. ProStruct360 may offer from time to time Mobile Applications. If such an Application is available and Customer or its Authorized User and/or Registered Client chooses to download it, subject to, and in accordance with, the terms of this Agreement, ProStruct360 grants to such Customer, Authorized User and/or Registered Client, and such party accepts from ProStruct360, a limited, revocable, non-exclusive, and non-transferable license to use the Application. ProStruct360 reserves all rights not expressly granted hereunder. This license is automatically revoked if a party violates any of the terms of this Agreement.

8.2 Payment Terms. ProStruct360 may make all or some of the Application and the Application’s services available for free (the “Free Services”). ProStruct360 does not guarantee that any portion of the 360 Suite will always be available for free and reserves the right to begin charging for any portion of the 360 Suite at any time. The Free Services may have reduced functionality. Please review the specific terms for your applicable purchase. If Customer makes a purchase through the 360 Suite, then Customer consents to ProStruct360 storing its payment information. Prices are subject to change. In the event the 360 Suite is discontinued for any reason, any purchases will terminate and no refund will be made.

8.3 Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to use, receive or view, copies of source code, schematics, master copies, design materials or other information used in creating, developing or implementing the Application or any software or platforms used to provide the 360 Suite, including updates or modifications thereto. Without limiting the foregoing, Customer, its Authorized Users and/or Registered Clients shall have no rights to receive any source code for the Application or any software or platforms used to provide the 360 Suite and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Application or any software or platforms used to provide the 360 Suite for any purpose.

8.4 Prohibitions. Customer agrees not to do, or permit others to do, any of the following: (a) copy or modify the Application or any software or platforms used to provide the 360 Suite in any way, except as expressly permitted in this Agreement; (b) remove or modify ProStruct360’s copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Application or the 360 Suite; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the source code or object code of the Application or any software or platforms used to provide the 360 Suite or other runtime objects or files distributed with the Application or any software or platforms used to provide the 360 Suite; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application or the 360 Suite; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Application or the 360 Suite, in any form, to any third party (including in any service bureau or similar environment); (f) use the Application or the 360 Suite to process the data of third parties; (g) use, install, or make available the Application or any software or platforms used to provide the 360 Suite, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP); or (h) use the Application or the 360 Suite to infringe on any person’s copyright. In addition, Customer agrees not to violate or attempt to violate the security of ProStruct360’s networks or servers, including (x) access data not intended for Customer or log into a server or account which Customer is not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.

8.5 Maintenance or Support. ProStruct360 is not under any obligation to provide maintenance or support for the Application or the 360 Suite. ProStruct360 may provide maintenance or support for the Application or the 360 Suite in ProStruct360’s sole discretion.

8.6 Uninstallation. Customer, its Authorized User and/or Registered Client may, at any time, uninstall the Application by utilizing its mobile device’s procedures for uninstalling downloaded applications. However, ProStruct360 may retain collected data after the uninstallation.

8.7 Third-Party Terms. Customer, its Authorized User and/or Registered Client must comply with applicable third-party terms of service when using the Application, including any terms required by an applicable mobile carrier or device manufacturer.

8.8 Apple and Google-Specific Terms. The following additional terms and disclosures only apply to you if you use the Application through the Apple or Google operating systems, if available and as applicable:

Apple

1. This is a custom end-user license agreement between you and ProStruct360, and not with Apple. ProStruct360, and not Apple, is solely responsible for the Application, the Service, and the related content.
2. ProStruct360 grants you the non-transferable right to use the Application on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.
4. In the event of any failure of the Application to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of to conform to any warranty, if any, will be the sole responsibility of ProStruct360.
5. ProStruct360, and not Apple, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
6. In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, ProStruct360, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Any questions, complaints, or claims with respect to the Application should be directed to support@ProStruct360.com.
9. You must comply with applicable third party terms of agreement when using the Application.
10. 10.Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

The following additional terms and disclosures only apply to you if you use the Application through the Apple payment platform, if available and as applicable:

1. You acknowledge and agree that to  the maximum extent permitted under applicable law, in no event will Apple be liable to you for indirect, consequential, incidental, special, punitive or exemplary damages, whether in  contract, tort (whether in negligence or strict liability) or other legal or equitable theory, or any loss  of profits or revenue, regardless of whether Apple knew or should have known of the possibility of  such damages.
2. You acknowledge and agree that Apple shall not be liable for any unauthorized transactions made using Provisioned Cards.
3. You acknowledge and agree that you will not discriminate against the Program, Apple Pay Transactions and/or the Apple Payment Platform relative to other transactions and/or platforms of similar kind.
4. You acknowledge and agree that you shall comply with all applicable laws related to the performance of its obligations under this agreement.
5. You are prohibited from passing fees attributable to Apple Pay on to individual Cardholders or individuals authorized to use any Cards issued to you. 
6. You acknowledge and agree that you will protect the Apple Confidential Information obtained pursuant to this agreement from unauthorized dissemination and use with the same degree of care that you use to protect your own like information. Except as expressly set forth herein, you will not use the Apple Confidential Information for purposes other than those necessary to directly further the purposes of the agreement. Except as expressly permitted under the agreement, you will not disclose to third parties the Apple Confidential Information without the prior written consent of Apple, including (i) the public disclosure of any metrics related to the Program and (ii) your planned participation in the Program prior to the public launch of your participation in the Program. 
7. You acknowledge and agree that to the extent you provide any ideas, requests, feedback, reports, suggestions or  recommendations to Apple, in writing, orally, by demonstration or otherwise, regarding the Apple  Confidential Information, you hereby grant to Apple a non-exclusive, fully paid-up, perpetual, irrevocable, worldwide license to make, use, reproduce, incorporate, modify, display, perform, sell,  make or have made derivative works of, distribute (directly or indirectly) and sublicense, such  feedback in connection with Apple’s products and services.
8. You shall include a sub-license grant to Apple and its Affiliates (and  their agents and contractors acting on their behalf), during the Term, a non-exclusive, non-transferable, worldwide, royalty-free, license to use, reproduce, and display your marks as follows: (i) in connection with the use and display of the Apple Payment Platform in  Apple products, including the right to embed and display your marks within such Apple  products; (ii) in the marketing, advertising and promotion of the availability of the Apple Payment  Platform in Apple products in any medium, including the right to use screenshots and images of  your marks as they may be used in the Apple Payment Platform, including but not  limited to use in instructional materials, training materials, marketing materials, and standard  advertising in any medium; and (iii) in a publicly disclosed list of Corporate Clients participating  in the Program. Any such use of your marks as set forth in items (i) – (iii) will be at Apple’s discretion (i.e., Apple shall have no obligation to display or use any of your marks, commercial designations or slogans on any Apple products or services or Apple marketing materials for such products and services). 
9. You acknowledge that Apple makes no representations or warranties, express or implied, regarding the Apple Payment Platform or any related products and services, including any implied warranty of merchantability or implied warranty of fitness for a particular purpose, all such warranties being expressly disclaimed. Without limiting the foregoing, Apple does not warrant that the use of the Apple Payment Platform or any related products and services will be error free or uninterrupted.
10. 10.You acknowledge that Apple reserves the right to change, discontinue, or suspend (for any period of time) any or all functionality, Cardholder interface, or any other aspect of the Apple Payment Platform (whether software, hardware, or any part of the Apple Pay Platform service) at any time, including suspension of provisioning and transaction usage.

Google

1. This is a separate end user license agreement between you and ProStruct360, and not with Google.
2. Subject to, and in accordance with, this Agreement and any required payments, ProStruct360 grants to You, and You accept from ProStruct360, a non-exclusive, worldwide, and perpetual license to perform, display, and use the Application on your device that can access Google Play. The user may include, but is not limited to, a family group, with a family manager and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play are subject to reasonable limits designed to prevent abuse of family sharing features. Users in a family group may purchase a single copy of the Service (except in-app and subscription products, which cannot be shared) and share it with other family members in their family group. This license is automatically revoked if you violate any of this Agreement.
3. You are allowed unlimited reinstalls of the Application, unless and until ProStruct360 removes the Application from the Google Play or any other Google-branded distribution platform.
4. ProStruct360, and not Google, will have the sole responsibility to undertake or handle support and maintenance of the Application or any complaints about the Application, subject to this Agreement.
5. ProStruct360, and not Google, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; (c) intellectual property claims; and (d) claims arising under consumer protection, privacy, or similar legislation, if applicable.
6. ProStruct360, and not Google, is solely responsible for ProStruct360’s breach of any agreement with Google, any applicable third-party contract or terms of service, or any applicable law or regulation.
7. Any questions, complaints, claims, or issues regarding defects or performance issues with respect to the Application should be directed to support@ProStruct360.com.
8. The collection, use, and distribution of your information is governed by the Privacy Policy and by downloading and/or using the Application you agree to be bound by the terms of that Privacy Policy.

9.Cashlab

During the Subscription Term, Customers located in the United States may enroll in ProStruct360’s Cashlab Payments program, which provides Accounts Payable services for Customer to pay bills through the 360 suite.

10. Koppr Payment Services

During the Subscription Term, Customers located in the United States may enroll in ProStruct360’s Koppr Payment Services program. This product may be added onto any level subscription and provides a merchant account for Customer to receive online payments for invoices sent through the 360 suite. You can view our Koppr Payment Services Terms and Conditions here, all of which will apply to any Customer who utilizes the Koppr Payment Services program, in addition to the terms provided herein.  In the event of any conflict between the terms hereof and the Koppr Payments Services Terms and Conditions, the terms hereof shall govern and control the relationship between the parties.

11. ProStruct Alliance

Customer may purchase ProStruct360’s ProStruct Alliance growth services. The terms of the growth services are set forth in the ProStruct Alliance Agreement, which are incorporated herein by reference and are subject to the terms of this Agreement. For a copy of the ProStruct Alliance Agreement, please email us at support@ProStruct360.com.

12. Quickbooks Online Integration

ProStruct360 offers Quickbooks Online integration for some subscription levels. Connecting your quickbooks through our integration gives ProStruct360 the ability to access information in your Quickbooks as well as push information including but not limited to financial transactions, vendor information, and client information into your Quickbooks account. Third party integrations such as Quickbooks Online may cause accounting issues if communication is interrupted for any reason. ProStruct360 is not liable for the accuracy of your accounting information. 

13. Indemnification

13.1 By Customer. Customer shall indemnify, hold harmless and defend ProStruct360, its Affiliates, and their employees, officers, and directors (together, the “ProStruct360 Indemnified Parties”) from and against any third party claims, actions, proceedings, suits and demands brought against the ProStruct360 Indemnified Parties, and against all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, settlement costs and reasonable attorneys’ fees) incurred by the ProStruct360 Indemnified Parties arising out of or relating to: (i) Customer’s breach of any term or condition of this Agreement, (ii) Customer’s, its Authorized Users, and/or Registered Client’s use of the Service or 360 Suite, (iii) Customer’s, its Authorized Users, and/or Registered Client’s unauthorized use of the Service or 360 Suite, or (iv) Customer’s, its Authorized Users, and/or Registered Client’s use, posting, uploading or transmission of Customer Data and/or Registered Client Data and the subsequent use of such data by ProStruct360 in accordance with this Agreement and the Privacy Policy. ProStruct360 will provide prompt notice to Customer of any indemnifiable claim against ProStruct360. Customer will undertake, at Customer’s own cost, the defense of any claim, suit, or proceeding with counsel reasonably acceptable to ProStruct360. ProStruct360 reserves the right to participate in the defense of the claim, suit or proceeding, at ProStruct360’s expense, with counsel of ProStruct360’s choosing.

13.2 By ProStruct360. ProStruct360 will indemnify, defend, and hold harmless Customer, its Affiliates, and their employees, officers, and directors (together the “Customer Indemnified Parties”) from and against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Customer Indemnified Parties to the extent the claim is based on an allegation that the Service or 360 Suite infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will ProStruct360 have any obligations or liability under this Section arising from: (i) Customer’s, any Authorized User’s, or any Registered Client’s use of the Service or 360 Suite other than as permitted under this Agreement; or (ii) use of the Service or 360 Suite in a modified form or in combination with products, services, content, or data furnished to Customer by ProStruct360.

13.3 Potential Infringement. If the 360 Suite becomes, or in ProStruct360’s reasonable judgment is likely to become, subject to a claim of infringement, then ProStruct360 may in its sole discretion: (a) obtain the right, at ProStruct360’s expense, for Customer to continue using the 360 Suite; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the 360 Suite so that it is no longer infringing. If ProStruct360, in its sole reasonable judgment, determines that none of the above options are commercially reasonable, then ProStruct360 may suspend or terminate Customer’s use of the 360 Suite, in which case ProStruct360’s sole liability (in addition to its obligations under Section 13.2) shall be to provide Customer with a prorated refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term. Sections 13.2 and 13.3 state ProStruct360’s sole liability and the Customer Indemnified Parties’ exclusive remedy for infringement claims.

13.4 Indemnification Process. The party seeking indemnification must provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and must provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice does not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim. However, any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent.

14. Liability

14.1 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 (“INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF (A) THE AGGREGATE FEES PAYABLE BY CUSTOMER FOR THE SERVICE DURING THE PREVIOUS SIX (6) MONTHS, OR (B) FIVE HUNDRED AND 00/100 DOLLARS ($500.00). CUSTOMER’S SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE 360 SUITE OR ANY OTHER GRIEVANCE SHALL BE TERMINATION (WITHOUT REFUND) AND DISCONTINUATION OF ACCESS TO, OR USE OF THE 360 SUITE.

14.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL ProStruct360 OR ITS AFFILIATES HAVE ANY LIABILITY TO CUSTOMER, ITS AUTHORIZED USERS, ITS REGISTERED CLIENTS OR ANY THIRD PARTY FOR ANY (A) LOST PROFITS, REVENUES, OR LOSS OF USE, OR LOSS OF DATA, OR INFORMATION (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (C) BODILY INJURY OR EMOTIONAL DISTRESS, OR (D) REPUTATIONAL HARM, HOWEVER CAUSED, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT ProStruct360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

14.3 Allocation of Risk. The provision of this Section 14 allocates the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.

15. Export Compliance

The 360 Suite may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that neither it nor any of its Authorized Users are named on any U.S. government denied-party list. Customer shall not permit any Authorized User to access or use the 360 Suite in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. Customer and its Authorized Users shall not use the 360 Suite to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

The U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations or entities, including without limitation, certain “Specially Designated Nationals” (“SDN”) listed by OFAC. If Customer is located in a Sanctioned Country or is listed as an SDN, Customer is prohibited from registering or signing up with, subscribing to, or using the 360 Suite. If ProStruct360 determines that the 360 Suite is being used by prohibited persons, ProStruct360 will terminate any impacted accounts. ProStruct360 reserves the right to also provide notification of any such usage to the US DOT/OFAC.

16. Use Outside the United States.

The 360 Suite is controlled and operated by ProStruct360 from its offices in the United States of America. Except as explicitly set forth herein, ProStruct360 makes no representations that the 360 Suite is appropriate for use in other jurisdictions. Those who access or use the 360 Suite from other jurisdictions do so at their own risk and are responsible for compliance with local laws.

17. Data Use

17.1 Protection of Customer Data. ProStruct360 shall implement and maintain industry standard administrative, organizational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Customer Data by ProStruct360’s personnel. Customer bears sole responsibility for adequate security, protection, and backup of Customer Data when in Customer’s or its representatives’ or Affiliates’ possession or control. Customer acknowledges that it retains administrative control over to whom it grants access to Customer Data and Registered Client Data hosted in the 360 Suite, and ProStruct360 is not responsible for any unauthorized access or use of Customer Data and Registered Client Data by Customer or its Representatives.

17.2  Export of Customer Data. During the Subscription Term ProStruct360 may make available to Customer the following means of export for its Customer Data: (i) a separately hosted account on a private server (subject to certain hosting fees, plus fees for any Support Services), or (ii) an excel-based export of all of the relevant Customer Data. A Data export request should be submitted in writing and must be submitted during your subscription term. Additional charges will apply depending on size and work load for the export of your data. If a subscription is canceled, downgraded to an unpaid version, or a subscription is currently in a non-payment status, ProStruct360 maintains the right to delete Customer Data submitted through the Service and it will no longer be available to Customer. 

17.3 License to use Customer Data.  Notwithstanding anything to the contrary herein, Customer grants ProStruct360 and its authorized third party service providers a perpetual, worldwide, non-exclusive, irrevocable royalty-free license to use, combine, match with other data, manipulate, analyze, modify, host, copy, access, process, transmit, sell, license, sublicense and display Customer Data: (a) to maintain, provide, and improve the 360 Suite and perform under this Agreement and the Privacy Policy; (b) to prevent or address technical or security issues and resolve support requests; (c) to investigate in good faith an allegation that an Authorized User or Registered Client is in violation of this Agreement; (d) to develop new products and services; (e) for any other purpose or use permitted by the Privacy Policy; or (f) at Customer’s direction or request or as permitted in writing by Customer; provided, that, in no event may any Customer Data be used to identify or attempt to identify any individual for an unlawful purpose. ProStruct360 may also collect, process, and use data in any other way, including by disclosing, sharing, or otherwise making it available to third parties. ProStruct360 may also collect information from the 360 Suite related to or arising from your use of the 360 Suite. Such information may include personally identifiable information.

17.4 Authorizations.  Customer shall obtain all consents and authorizations required by law or by contract to transfer Customer Data (including Registered Client Data) to ProStruct360 so that ProStruct360 and its service providers may use, process, and transfer the Customer Data in accordance with this Agreement and the Privacy Policy.

17.5 Third-Party Rights.  Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall promptly notify ProStruct360 if it becomes aware of any unauthorized use of or access to Customer’s account or the 360 Suite. If a Registered Client wishes to exercise his or her rights under applicable consumer privacy law (including, but not limited to, as applicable, the European Union’s General Data Protection Regulation (GDPR), United Kingdom’s Data Protection Act, Canada’s Personal Information and Electronic Documents Act (PIPEDA), or California Consumer Privacy Act of 2018), the Registered Client shall contact the Customer to request the Customer to remove that data from the 360 Suite on the Registered Client’s behalf.

18. Third-Party Use

18.1 Third-Party Services. The 360 Suite may use or provide access to one or more third-parties to process payments, process account or user registrations, or provide other services. The use of such third-party services are subject to the third-party’s terms of service. Any disputes arising regarding a third-party’s services must be resolved directly between Customer and the third-party. ProStruct360 disclaims all warranties or representations regarding any third-party services. ProStruct360, in its sole discretion, and without notice to Customer, may subcontract any services to be performed by a third-party.

19. A2P 10DLC Compliance Statement

19.1 User Consent: We adhere to the principle of informed consent for all A2P 10DLC messaging. Users must explicitly opt-in to receive messages from our platform. Consent can be obtained through various means, including web forms, SMS confirmations, or verbal agreements, and will be documented and stored in compliance with relevant laws and regulations.

19.2 Message Content: All messages sent via our platform will comply with applicable laws and regulations. We prohibit the transmission of harmful, fraudulent, or illegal content. Messages will be monitored for compliance, and we reserve the right to suspend or terminate services for any user found to be in violation of these standards.

19.3 Opt-Out Mechanisms: Every message sent via our platform will include a clear and easy-to-use opt-out mechanism. Users can opt-out at any time, and such requests will be processed promptly. Opt-out preferences will be respected and adhered to without exception.

19.4 Carrier Compliance: We will comply with all carrier guidelines and requirements related to A2P 10DLC messaging. This includes adherence to message throughput limits, content restrictions, and any other carrier-imposed guidelines.

19.5 Data Privacy and Security: We are committed to protecting the privacy and security of user data. All personal information will be handled in accordance with our Privacy Policy, and we will take appropriate measures to ensure the security of our messaging platform.

19.6 Compliance Updates: Our A2P 10DLC compliance practices may be updated periodically to reflect changes in laws, regulations, or carrier policies. We will communicate any significant changes to our users in a timely manner.

19.7 Contact and Grievances: For any questions or concerns regarding our A2P 10DLC practices, or to report a compliance issue, users can contact us at support@prostruct360.com.

20. Miscellaneous

20.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Georgia without regard to its conflict of laws provisions.  Subject to Section 19.2, each party consents to the exclusive personal jurisdiction and venue of the state or federal courts located in Roswell, Georgia for the resolution of any disputes between the parties. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.

20.2 MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS. PLEASE READ THIS SECTION CAREFULLY, IT EXPLAINS THE TERMS UPON WHICH CUSTOMER IS WAIVING ITS RIGHT TO BRING CLAIMS ARISING UNDER THIS AGREEMENT IN A COURT OF LAW OR TO HAVE A JURY RESOLVE ANY DISPUTES HEREUNDER. Except if other applicable laws require otherwise, the parties hereto agree and understand that any dispute or claim related to Customer’s, its Authorized Users or Registered Client’s use of the 360 Suite, any disputes regarding any alleged breach of the Agreement, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce the terms of this Agreement or for the breach of this Agreement, shall be referred to final and binding arbitration, and not in court.

The Federal Arbitration Act and federal arbitration law apply to this agreement.

Any arbitration proceeding will take place in the State of Georgia, subject to the laws of the State of Georgia and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this Agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney’s fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.

All parties agree that any dispute re360 Suite proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration the parties each waive any right to a jury trial.

20.3 Notice. ProStruct360 may give notices to Customer related to the 360 Suite through email, text, in-app notifications, or by posting them on the ProStruct360 website or through the 360 Suite and such electronic notices shall satisfy any legal requirement that such notices be made in writing. Notices to ProStruct360 shall be sent to ProStruct360’s Legal department at legal@ProStruct360.com with a copy sent first class, airmail, or overnight courier to ProStruct360, LLC, 570 Colonial Park Dr, STE 316, Roswell, GA 30075, c/o: Legal Department.

20.4 Publicity. ProStruct360 may include Customer’s name and logo in ProStruct360’s online customer list and in print and electronic marketing materials as well as any comments or reviews left on our social media, review websites, or submitted in writing to any ProStruct360 representative.

20.5 Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s Authorized Users and its Registered Clients are not third-party beneficiaries to Customer’s rights under this Agreement.

20.6 Force Majeure. ProStruct360 shall not be liable to Customer for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of ProStruct360, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). ProStruct360 shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). ProStruct360 shall promptly notify Customer and make reasonable efforts to mitigate the effects of the Force Majeure Event.

20.7 Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

20.8 Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by Customer without ProStruct360’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement and all Order Forms under this Agreement upon written notice without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

20.9 Modifications. ProStruct360 reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the use of the 360 Suite, at any time, by posting the new terms on the 360 Suite or https://ProStruct360.com/legal/, as applicable. The most current version of this Agreement will be located on this webpage. Customer acknowledges and agrees that its access to or use of the 360 Suite is governed by the then-current Agreement that is effective at the time of Customer’s access to or use of the 360 Suite. If ProStruct360 makes material changes to this Agreement, it will notify Customer by updating the “Updated” date indicated at the top of this page with the date that revisions to this Agreement were last made. ProStruct360 may notify Customer of any such changes by email or other personal contact. Customer should revisit this Agreement on a regular basis as revised versions will be binding upon Customer. Any such modification will be effective upon ProStruct360’s posting of such new terms. Customer understands and agrees that its continued access to or use of the 360 Suite after the effective date of modifications to this Agreement indicates Customer’s acceptance of the modifications.

20.10 Hyperlinks. A link from the 360 Suite to a third party’s website does not mean that ProStruct360 endorses or accepts any responsibility for the content, functioning, policies, or use of such website, and Customer enters any such website at its own risk. It is Customer’s responsibility to take precautions to ensure that whatever websites or other online materials that it selects for use are free of viruses and other items of a destructive nature. Additionally, ProStruct360 suggests you review the linked site’s terms of service and privacy policy, and if Customer does not agree to be bound by the terms of that site, terminate its visit to that site. ProStruct360 is not responsible for the privacy policies and practices of the sites operated by our business partners or other third parties. ProStruct360 expressly disclaims any liability related to such sites. ProStruct360 also prohibits unauthorized hypertext links to the 360 Suite or the framing of any content available through the 360 Suite. ProStruct360 reserves the right to disable any unauthorized links or frames.

20.11 Entire Agreement. This Agreement, including all attachments, exhibits, addendums, and any Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Order Form, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process, web portal, or any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

20.12 Equitable Remedies. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that (a) a breach or threatened breach by Customer of any of its obligations under Sections 2.3, 6, 7, and 8.4 of this Agreement would give rise to irreparable harm to ProStruct360 for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Customer of any such obligations, ProStruct360 shall, in addition to any and all other rights and remedies that may be available to ProStruct360 at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.