Services Agreement

Last Modified: October 3, 2024

This Services Agreement is entered into between Prokeep, Inc. a Delaware corporation (“Prokeep”) with its principle business office located at 610 S. Peters Street, Suite 305, New Orleans, Louisiana 70130, and the customer procuring the services as identified on the Quote (as defined below) on the date (the “Effective Date”) list on the Quote, and shall, together with the terms of any Quote accepted by Customer which incorporates the terms of this Services Agreement (whether through signature or through electronic means indicating its acceptance) (collectively, the “Agreement”), govern Prokeep’s provision and Customer’s use of the Prokeep software, mobile application, support services, and any other services provided to Customer under this Agreement (collectively, the “Prokeep Services” or the “Services”). Prokeep and Customer are referred to herein individually as a “Party” and together as the “Parties”.

1. DEFINITIONS

2. SERVICES 

2.1     License to Use Prokeep Services. Subject to Customer’s payment of Fees and compliance with the terms and conditions of this Agreement and the Prokeep Policies, Prokeep grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable and limited right and license to access and use the Prokeep Services for Customer’s business purposes at the number of Authorized Locations set out in an executed Quote. Access to the Prokeep Services will be granted upon Customer’s establishment of an account (“Account”). All information provided by Customer in registering for an Account must be accurate, current and complete. Customer is solely responsible for all use and Content associated with its Account, including by Customer Users, and Prokeep shall have no liability for any unauthorized use due to sharing of or failure to properly safeguard Customer or Customer Users’ Account credentials.

2.2     Customer Users. Customer may permit Customer Users to use the Prokeep Services, provided that Customer ensures that such use (i) complies with applicable laws, the terms of this Agreement, and Prokeep’s Policies to the extent applicable to end users, including with the restrictions and limitations on use set out in this Agreement, and (ii) is for Customer’s  business purposes in connection with an Authorized Location. Customer will be responsible and liable for its Customer Users’ use and access of the Services and compliance with applicable laws and Prokeep Policies, in each case as applicable to end users of the Prokeep Services. Customer shall be responsible for all activity occurring on the accounts of its Customer Users, and for ensuring that its Customer Users maintain the confidentiality and security of their user IDs, passwords and other access credentials. Customer will immediately notify Prokeep of any loss of credentials by its Customer Users, including any unauthorized use of, or access to, an account. Prokeep’s practices with respect to the use of personal information provided by Customer Users are described in Prokeep’s Privacy Policy located at https://www.prokeep.com/privacy-policy as it may be updated from time to time. 

2.3     Modifications. During the Term, Prokeep may modify the Services, features, functionality or operation of the Services (collectively, “Modifications”) from time to time with or without notice to Customer.  

2.4     Support. Prokeep provides support for the Prokeep Services in accordance with the terms of this Agreement. Any additional support Services or professional services such as implementation or customization may be performed by Prokeep from time to time in its sole discretion, subject to the terms of a separate Quote agreed by the Parties setting out the scope, fees, and timing applicable to such services.   

2.6     Fees. Prokeep shall invoice Customer, and Customer shall pay the Fees, in accordance with the terms agreed in the Quote accepted by Customer. In the event that Customer fails to pay Fees when due, and without prejudice to its other remedies, Prokeep may (i) charge interest on all unpaid amounts due, at the rate of one and one-half percent (1.5%) per month or the maximum amount of interest permitted under applicable law, and (ii) immediately upon written notice to Customer, suspend access to the Prokeep Services and terminate this Agreement for cause. In the event that Prokeep must initiate legal action in order to collect overdue amounts, Customer shall be responsible for all costs of collection, including reasonable attorneys’ fees, court costs, and expenses.

3. ACCEPTABLE USE AND CUSTOMER RESPONSIBILITIES

3.1    Restrictions on Use. Customer will not, and will not permit any third party, including Customer Users, to: (i) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover Prokeep IP, or otherwise attempt to obtain the processes, workflows, look and feel, design, user interface or user experience, source code, software architecture or database structures for the Prokeep Services; (ii) modify, translate, benchmark or create derivative works based on the Prokeep Services or Prokeep IP; (iii) use the Prokeep Services in support of any third party or in excess of the number of Authorized Locations agreed in an Quote, or otherwise in any manner that interferes with the use of the Services by Prokeep’s other customers; or (iv) use the Prokeep Services in a manner not authorized in this Agreement, or in any manner that violates Prokeep Policies or applicable law. 

3.2   Content; Required Consents. As between Customer and Prokeep, Customer acknowledges that all Content is the responsibility of Customer, and, by providing such Content to Prokeep, Customer represents and warrants that (i) it has obtained all rights or consents required to use or display Content; and (ii) Customer’s use, display, transmission, or distribution of such Content in connection with its use of the Prokeep Services does not and will not infringe the intellectual property rights of any third party. Customer is responsible for providing any required disclosures to Customer Users and, if applicable, obtaining all rights of consent under applicable law. Customer further acknowledges and agrees that (i) it, and not Prokeep, shall be considered the “sender” of all messages sent under Customer’s Account; (ii) to the extent that consent is required to transmit messages to third parties, Customer has obtained any such required consents; and that (iii) Customer is solely responsible for the Content and transmission of messages sent using its Account, and Prokeep has no obligation to screen such content for compliance with the TCPA, telemarketing, do-not-call or privacy laws.

3.3   Monitoring. Customer acknowledges and agrees that Prokeep may monitor, analyze, and use Content and Customer Data (including without limitation the content of messages), and metadata related to Customer’s use of the Prokeep Services to: (i) improve the Prokeep Services and develop new or additional features or products; (ii) to improve the customer experience and make the Prokeep Services more helpful or useful to Customer and its users; and (iii) to monitor compliance with the terms of this Agreement and Prokeep Policies.

4. CONFIDENTIAL INFORMATION

4.1   The Parties agree that, from time to time during the Term of this Agreement, they may disclose Confidential Information for the purpose of performing their obligations or receiving Services hereunder. Each Party (as the receiving party) agrees to: (i) take reasonable precautions to hold in confidence and not disclose the other Party’s Confidential Information to third parties except as permitted under this Agreement; and (ii) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under the Agreement. Each Party may share the other Party’s Confidential Information with its employees, agents, contractors, subcontractors, and professional advisors having a legitimate need to know such information, provided that the Disclosing Party (i) ensures that such recipients are advised of the confidential nature of the information disclosed, and bound by written obligations on confidentiality with respect to same, and (ii) remains responsible for any breach of confidentiality of such recipient.

4.2   The obligations of confidentiality set out herein will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in the Receiving Party’s possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.

4.3   The Parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy and agree that upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedy it may have at law.

5. PROPRIETARY RIGHTS

5.1   Customer Data. As between the Parties, Customer retains all ownership rights and interest  in and to Customer Data. Customer hereby grants Prokeep a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of Customer Data as necessary to provide the Services and as otherwise provided herein. Customer represents and warrants to Prokeep that it has obtained all Customer Data in accordance with applicable laws and privacy policies and that any use of the Customer Data on the Prokeep Services is lawfully obtained with the required consent of any customer or Customer User of Customer. As between Customer and Prokeep, Customer assumes all responsibility for the safe and lawful collection and use of the Customer Data on the Services and agrees that any exploitation of Customer Data by Customer is at Customer’s own risk.

5.2   Aggregated Data. Customer agrees that Prokeep has the right to generate Aggregated Data, and to use and distribute such data for any business purpose during or after the Term of the Agreement, including without limitation to (i) develop, customize, and improve new or existing products or service offerings; and (ii) to monitor the performance, use or security of the Prokeep Services. Prokeep retains all right, title and interest (including any intellectual property rights) in and to Aggregated Data.

5.3   Prokeep IP. Except with respect to the limited license to access the Prokeep Services set out in Section 2.1, Prokeep retains all right, title and interest in and to all Prokeep IP including (i) Prokeep Services, Software and Aggregated Data and all improvements, enhancements or modifications thereto and (ii) any software, applications, inventions, know-how, modifications or other technology developed by Prokeep in connection with the Services or Feedback received. 

5.4   Feedback. Customer acknowledges and agrees that Feedback is entirely voluntary and all Feedback will be considered non-personal, non-confidential, and non-proprietary to Customer or Customer Users, and Prokeep shall have the right to use, reproduce, display, perform, practice, modify, create derivative or collective works, transmit, distribute, publish and otherwise exploit Feedback, in whole or in part, and including all intellectual property rights therein.

6. TERM AND TERMINATION

6.1   This Agreement shall remain in effect until terminated in accordance with this Section 6 and shall apply to all Quotes accepted by Customer. If this Agreement is terminated by either Party, all Quotes then in effect shall also terminate.

6.2   Termination for Breach. Either Party may terminate this Agreement or any Quote upon thirty (30) days prior written notice to the other Party (i) in the event of such Party’s uncured material breach of this Agreement, provided that the non-breaching Party provides prompt written notice of the event giving rise to the breach, and such event remains uncured during the thirty (30) day notice period.

6.3   Termination by Prokeep. Prokeep may terminate this Agreement or any Quote immediately upon written notice to Customer if Customer (i) fails to pay Fees due in accordance with the payment terms accepted in a Quote; or (ii) breaches Section 2.1 (License to Use Prokeep Services), 2.2 (Customer Users), 3 (Acceptable Use and Customer Responsibilities) or 5 (Proprietary Rights) of this Agreement. In the event of termination for Customer’s uncured breach, or for an event set out in this 6.3, Prokeep may, in addition to all remedies available to it at law or equity, (i) suspend Customer’s access to the Prokeep platform; and (ii) retain all Fees paid by Customer.

6.4   Effect of Termination. Upon termination or expiration of the Agreement or an Quote: (i) Customer’s license rights to access the Prokeep Services shall immediately terminate and it must cease use of the Services and, at Prokeep’s option, return or destroy any Prokeep Confidential Information in its custody or control; and (ii) Customer’s right to access any Customer Data will cease and Prokeep has the right to delete Customer Data thirty (30) days following the termination or expiration of the relevant Quote (during which period Customer shall have the right to download a copy of its Customer Data at Prokeep’s discretion).

6.5   All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, rights to payment, intellectual property, indemnity, confidentiality, warranty disclaimers, and limitations of liability. All remedies under this Agreement are cumulative and in addition to any other rights at law or equity and may be exercised concurrently or separately.

7. TAXES

7.1     Any stated amounts due pursuant to use of Prokeep and/or any subscription thereto are exclusive of any applicable federal, state, or other governmental taxes, duties, fees, excises, or tariffs (“Taxes”) which may be imposed on the services, features, or add-ons purchased or subscribed to. Customer shall be responsible for, and if necessary shall reimburse, Prokeep for all such Taxes on any amounts payable by Customer pursuant to the purchase of any good, item, document, service or otherwise from Prokeep, except for taxes imposed on Prokeep’s net income. If Prokeep has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Prokeep will bill Customer for such Taxes or add such Taxes to the amount originally invoiced to Customer.

8. NO WARRANTY

8.1     PROKEEP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND PROKEEP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER HEREBY WAIVES ANY CLAIMS FOR REDHIBITION OR WARRANTIES EXPRESSLY DISCLAIMED HEREIN; CUSTOMER ACKNOWLEDGES AND AGREES THAT PROKEEP IS NOT RESPONSIBLE FOR THE AVAILABILITY OF, OR THE CONTENT OF, OR ANY OTHER ASPECT OF THIRD-PARTY MATERIALS. PROKEEP DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY MATERIALS OR FOR ANY OTHER PRODUCTS, OR SERVICES OF THIRD PARTIES, OR THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY INFORMATION PROVIDED ON THE SERVICES. PROKEEP DOES NOT ENDORSE, NOR MAKES ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH REGARD TO ANY PRODUCT OR SERVICE PROVIDED OR OFFERED BY ANY THIRD PARTY.

9. INDEMNITY

9.1     Customer agrees to defend, indemnify and hold Prokeep, its officers, directors and employees harmless from any claim or demand (including attorneys’ fees, costs of defense, fines, penalties, and damages) made or incurred by any third party due to or arising out of Customer’s or Customer User’s (i) use of the Prokeep Services in a manner that violates the terms of this Agreement or applicable law; (ii) violation or infringement of Prokeep’s intellectual property rights, or of any other third party rights, including intellectual property rights, confidentiality, or rights of privacy; (iii) provision, use, display, or transmission of Content or Client Data; or (iv) breach or alleged breach of this Agreement, including Customer’s representations, warranties, and obligations.

10. LIMITATION OF LIABILITY

10.1     NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE EXTENT NOT PROHIBITED BY THE APPLICABLE LAW, PROKEEP AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES DISCLAIM ALL LIABILITY FOR AND SHALL NOT BE RESPONSIBLE UNDER ANY CIRCUMSTANCES HOWSOEVER ARISING UNDER THIS AGREEMENT OR DUE TO THE CUSTOMER’S USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING ANY FINES, PENALTIES, OR OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SERVICES; (C) FOR ANY MATTER BEYOND PROKEEP’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO PROKEEP FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PROKEEP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. MISCELLANEOUS

11.1   If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

11.2   This Agreement is not assignable, transferable or sublicensable by Customer except with Prokeep’s prior written consent. Prokeep may transfer and assign any of its rights and obligations under this Agreement upon written notice to Customer.

11.3   Unless otherwise agreed in a Quote, Prokeep may use Customer’s name or logo to identify Customer as a Prokeep customer on Prokeep’s website or other marketing materials.

11.4   Prokeep shall not be deemed to be in default of this Agreement to the extent that Prokeep’s performance is delayed or prevented by reason of fire, interruption and/or delay of internet or telecommunications services, labor troubles or strikes, wars, acts of God, riots, terrorism, natural disasters, acts of government, or other occurrences beyond the reasonable control of Prokeep (in each case, a “Force Majeure Event”), provided that Prokeep gives the Customer timely notice as soon as reasonably practicable upon the occurrence of such Force Majeure Event. In the event that a Force Majeure Event persists for a period greater than fifteen (15) days, either Party shall have the right to terminate this Agreement or an affected Quote upon Customer’s payment of all Fees payable through the effective date of termination.

11.5   This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

11.6   The Parties to this Agreement are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has authority of any kind to bind the other Party in any respect whatsoever by virtue of this Agreement.

11.7   In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

11.8   All notices under this Agreement will be in writing and will be deemed to have been given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service, return receipt requested; and upon receipt, if sent by certified or registered mail, return receipt requested. Customer agrees to receive notices under this Agreement at the primary e-mail address included in an accepted Quote or the primary e-mail address provided by Customer when establishing its Customer account with Prokeep. Customer further agrees to send a copy of any notice sent to Prokeep under this Agreement via e-mail to legalnotices@prokeep.com. 

11.9   This Agreement will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any litigation under this Agreement will be resolved in the trial courts of Orleans Parish, State of Louisiana.