Master Terms and Conditions
Last updated May 30th, 2021
THESE MASTER TERMS AND CONDITIONS ("MTC") apply to all service orders, service tickets, work orders, statements of work, service level agreements (each an “SLA”) and other contracts, agreements and invoices (collectively, "Instruments") between Prosper IT, LLC ("Prosper") and the client ("Client") specifically identified in an Instrument that is signed by the Client and expressly incorporates by reference these MTCs. The Acceptable Use Policy and Master Service Level Agreement, both located at www.Prosperits.com/agreements, are incorporated into these MTCs by reference, and by using the Services (as defined in Section 8(a)), Client agrees to be bound by the terms therein. Prosper may modify its Acceptable Use Policy from time to time in its sole discretion as provided herein.
These MTCs, together with each applicable service order or each applicable service ticket, work order or statement of work (each, an "SOW") pursuant to which the Client orders one or more services from Prosper (collectively, a "Service Order"), each applicable purchase quote pursuant to which the Client orders goods from Prosper (each, a "Purchase Quote"), and any other Instruments and other documents incorporated by reference herein or in any Service Order, Purchase Quote or Instrument (including, without limitation, Prosper’s Acceptable Use Policy), are collectively referred to as the "Agreement".
2. Subscription Services
- Service Orders. The subscription services to be provided by Prosper and paid for by Client are as set forth in each applicable Service Order signed by Client, as amended from time to time (the "Subscription Services").
- Term. Prosper will provide, and the Client will pay for, the Subscription Services indicated in each Service Order for the duration of the term indicated in such Service Order (the "Initial Term"). At the end of the Initial Term or any Automatic Renewal Term, unless specified otherwise in the applicable Service Order, the term of the Service Order will automatically renew on an annual basis for successive one-year terms at Prosper’s then current pricing (each an "Automatic Renewal Term" and collectively with the Initial Term, the "Term"), until either party terminates the Service Order by providing written notice of termination to the other party at least thirty (30) days prior to the expiration of the then-current Term.
- Service Equipment. Prosper equipment located at Client’s premises and either leased from or furnished by Prosper (the "Prosper Equipment") in connection with the provision of Subscription Services remains the property of Prosper. Client agrees to maintain all Prosper Equipment located at Client’s premises in a reasonable operating environment, including without limitation the provision of reasonable lighting, HVAC, security, custodial services, and all minimum requirements set forth in any applicable Instrument. Client shall not allow any lien or encumbrance to be placed on any Prosper Equipment at any time and shall maintain any Prosper identification tags or other markings placed on the Prosper Equipment by Prosper. Client bears all risk of loss of, theft of, casualty or damage to the Prosper Equipment and any equipment purchased by Client from Prosper (the "Client Equipment"), from the time it is shipped or delivered to Client’s location and, with respect to Prosper Equipment, until recovered by or returned to Prosper. If any Prosper Equipment is damaged or defaced while at Client’s premises, or is return to Prosper damaged or defaced, Client will be responsible for repair or replacement of the damaged or defaced Prosper Equipment. If any such Prosper Equipment cannot be recovered from Client’s premises or is not returned by Client to Prosper at the end of the Term, then Client will pay Prosper its cost of purchasing the Prosper Equipment. The Prosper Equipment and Client Equipment may be configured exclusively for Client’s use of the Subscription Services. Unless expressly authorized by Prosper, Client shall not tamper with the Prosper Equipment or Client Equipment or modify its configuration. Client agrees to not change the electronic serial number or identifier, or perform a factory reset, of said Client Equipment or Prosper Equipment without prior written permission from Prosper. Prosper reserves the right to terminate the Subscription Services should Client tamper with aforementioned equipment, and in such case, Client shall be responsible for all outstanding balances due for the Subscription Services, unbilled charges under the Agreement, and a disconnect fee, if applicable, all of which shall become immediately due and payable.
- Price: Minimum Commitment. Client agrees to pay the price indicated for the Subscription Services in the applicable Service Order. Unless the Service Order provides otherwise, Prosper may not change the prices for the Subscription Services at any time during the Initial Term unless mutually agreed to by the parties in writing. Client agrees to pay for the Subscription Services used each month and, to the extent set forth in any Service Order, further agrees to a minimum periodic commitment for use of the Subscription Services for each applicable period set forth in such Service Order during the Term of such Service Order (the "Minimum Commitment"). In the event that Client does not meet its Minimum Commitment in any given period during the Term of the applicable Service Order, Prosper shall invoice for, and Client shall pay, within fifteen (15) days of the invoice date, the shortfall equal to the difference between the Minimum Commitment for such period and any payments for actual usage of Subscription Services made by Client during such period. Any shortfall payments shall be in addition to Client’s payment of any fees for Subscription Services used during the applicable period.
- Client Requirements. Client agrees that it: (i) must follow all rules and requirements pertaining to the Subscription Services as set forth in this Agreement, (ii) is solely responsible for the hardware, software and network connectivity required by Client to connect to, and utilize, the Subscription Services except to the extent any such hardware, software or connectivity is expressly provided by Prosper pursuant to a Service Order, (iii) may not utilize the Subscription Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third-party or that creates in any third-party a right of action against any person or entity (a “Person"), (iv) may not utilize the Subscription Services in any manner that violates Prosper’s Acceptable Use Policy, (v) may not reverse engineer, decompile or attempt to derive the source code of any software provided by Prosper in connection with the Subscription Services, and (vi) may not rent, lease or resell the Subscription Services unless Client is party to a written agreement with Prosper that expressly permits such activity.
- At any time when there is no Service Order in effect, Client may terminate the Agreement immediately by giving written notice to Prosper.
- Prosper may terminate any or all Service Orders, the Agreement, and/or suspend the provision of Subscription Services to Client, in Prosper’s sole discretion, immediately upon notice to Client if: (A) Client fails to pay an invoice not reasonably disputed in good faith when due (including without limitation any Minimum Commitment shortfall amount), (B) Client breaches any of its representations, warranties or covenants or Client violates any of its duties or obligations under the Agreement or any Service Order, (C) Client violates the Prosper Acceptable Use Policy, (D) Client violates applicable law through or in connection with its utilization of the Subscription Services, (E) it is deemed reasonably necessary by Prosper to prevent interruption or disruption to Prosper’s network, its business or other clients or customers, (F) as provided in Section 11(d) of these MTCs, (G) Client becomes unable to pay its bills as they become due, (H) Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, or (I) Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
- iii. Prosper shall not be liable to Client or any third-party should Prosper exercise its right to discontinue Subscription Services, in whole or in part, or terminate the Agreement or any or all Service Orders pursuant to Section 2(f)(ii) above. In the event of termination of any Service Order that specifies a Minimum Commitment, Client shall pay to Prosper as liquidated damages in respect of the termination of such Service Order only (and not in respect of the termination of any other Service Orders), but not as a penalty, and representing a reasonable estimate of the probable loss to Prosper from the termination of such Service Order, the shortfall resulting from Client’s failure to meet such Minimum Commitment for the term of such Service Order, which amount shall equal (X) such periodic Minimum Commitment multiplied by the total number of applicable periods occurring in the Term of such Service Order, less (Y) any payments for actual usage of Subscription Services made by Client during the Term of such Service Order; provided, however, no payments over and above the Minimum Commitment for any one period shall apply to or in any way be credited against any other, past or present, periodic Minimum Commitment or the overall shortfall amount for the Term of such Service Order.
- Notwithstanding anything herein to the contrary but on the conditions set forth herein, if at any time during the first year of the Initial Term, Client is not satisfied with Prosper’s Service, Client may terminate this Agreement with no penalties. In order to be entitled to exercise this early termination right, Client must have fully cooperated with Prosper in the on-boarding of the Services, and Client must deliver to Prosper prior to the end of the first year of the Initial Term written notice describing in detail the reasons for dissatisfaction with the Services. Prosper will then have thirty (30) days to try to remedy the issues identified in Client’s notice. If, after the expiration of the thirty (30) day cure period, Client is still not satisfied with the Services, Client may provide written notice of termination. If Client desires Prosper to provide off-boarding Services, Client will notify Prosper of the request in writing and the parties will agree in writing on any additional fees that may apply to off-boarding Services. The parties will cooperate in good faith to effect the off-boarding Services. This early termination right will not apply to any termination by Client after the expiration of the first year of the Initial Term of the Agreement.
- Unless Prosper discontinue Subscription Services, in whole or in part, due to Client’s failure to make payments not otherwise in dispute, if Client provides a written request for Prosper to continue to provide Services under an Agreement pending resolution of a dispute, then Prosper shall provide such Services and Client shall continue to make payments to Prosper, in accordance with the Agreement during the period in which the parties seek resolution of the dispute.
3. Professional Services
- Work Performed. The professional services to be provided by Prosper and paid for by Client are as set forth in each applicable SOW, as amended from time to time (the "Professional Services").
- Limited Warranties on Professional Services. Prosper warrants and covenants that Professional Services will be performed: (i) in accordance with the terms of the applicable SOW, including the location and time for performing, and the scope of, the Professional Services; (ii) in a workmanlike manner and in accordance with generally accepted professional practices, using qualified Prosper personnel; and (iii) in accordance with any plans, drawings, or specifications furnished to Client, if any. In the event of a breach of this warranty, as Client’s exclusive remedy, Prosper will re-perform the defective Professional Services at no charge to the Client within a reasonable time or within the limits of any Instrument.
- Purchase Quotes. The goods, including shelf software and hardware, produced by third parties (each, a “Supplier”) to be provided by Prosper and paid for by Client are as set forth in each applicable Purchase Quote, signed by the Client (as so defined, the “Goods").
- Delivery of Goods. All prices are F.O.B. Supplier’s plant, unless otherwise specified by Prosper. All shipping dates are approximate, and any time-period indicated for a shipment shall not commence until receipt at Supplier’s office of the purchase order. Acceptance of shipment by designated shipper, allocation of Goods to Client at premises other than Prosper’s, delivery to Client, or mailing of an invoice to Client, whichever first occurs, shall constitute tender of delivery. Upon tender of delivery, title shall pass to Client, subject to Prosper’s right to stoppage in transit and to any interest Prosper reserves to secure Client’s payment or performance, irrespective of any freight allowance or prepayment of freight. With respect to Goods held subject to Client’s instructions, Good for which Client has failed to supply shipping instructions, or in any case where Prosper, in its sole discretion, determines any part of Goods should be held for Client’s account, Prosper may invoice for such Goods and Client agrees to make payment of the invoice rendered. Goods invoiced and held at any location for whatever reason shall be at Client’s risk and Prosper may charge for (but is not obligated to carry) insurance, storage, and other expenses incident to such delay at its prevailing rates. Partial deliveries shall be accepted by Client and paid for at contract prices and terms. When Client has declared or manifested an intention not to accept delivery, no tender shall be necessary, but Prosper may, at its option, give notice in writing to Client that Prosper is ready and willing to deliver, and such notice shall constitute a valid tender of delivery, of the Goods. In the absence of directions, Goods will be delivered by the method and via carrier Prosper believes dependable. Delivery by truck will be made to nearest points reasonably accessible by truck as determined by the driver. Client will furnish and pay for necessary labor to unload and store Goods. Client must report any shortages within two (2) days of receipt of the shipment, or claims will be waived.
- Loss or Damage in Transit. In no event shall Client be entitled to make any deduction from any payment due hereunder by reason of loss or damage in transit. Upon written request of Client, Prosper, at its sole discretion, may agree as a service to Client to process Client’s claim against the carrier for any loss or damage in transit, provided that such claim is received by Prosper within three (3) days after Client’s receipt of the Goods. Any such claims must be accompanied by a delivery receipt, signed by carrier’s agent at time of delivery, on which receipt the loss or damage has been noted. Client shall note loss or damage on truck shipments upon delivery ticket returned to Prosper, or such claims shall be waived.
- Cancellation, Changes, and Returns. In the event of a proper cancellation, change or return request from Client under this Agreement, Prosper may, at its option (i) charge Client for any costs Prosper incurred prior to or as a result of such cancellation, change or return; (ii) revise its prices and delivery dates to reflect such change; and (iii) accept returned Goods for credit if, in Prosper’s sole discretion, it finds such Goods to be standard stock and in good condition. The credit will be, in Prosper’s sole discretion, either the invoice price less a percentage to be determined by Prosper and less shipping and handling charges to be determined by Prosper. All returned Goods must be securely packed by Client to ensure that returned material is not damaged during shipment.
- Deferred Delivery. If Client requests a deferred delivery on any order and Prosper approves in writing, Prosper may charge Client for the completed portion of the order and warehouse all other Goods at Client’s expense and risk of loss. As to any uncompleted portion of the Agreement, Prosper may, at its option, consider the Purchase Quote cancelled as to said uncompleted portion in accordance with Section 4(d) above or revise its prices and delivery schedules on the portion not completed to reflect its increased costs and expenses attributable to the delay.
- Security Interest. To secure Client’s prompt and complete payment and performance of any and all present and future indebtedness, obligations, and liabilities of Client to Prosper under this Agreement, Client hereby grants Prosper a first-priority security interest, prior to all other liens and encumbrances, in all Goods purchased under this Agreement wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacement or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until Client has paid for the cost and expenses of Good hereunder. Client acknowledges that the security interest granted under this Section 4(f) is a purchase-money security interest under the Uniform Commercial Code of the State of Alabama. Prosper may file a financing statement for the security interest, and Client shall execute any statement or other documentation, if necessary, to perfect Prosper’s security interest in Goods. Client also authorizes Prosper to execute, on Client’s behalf, statements or other documentation, if necessary, to perfect Prosper’s security interest in Goods. Prosper is entitled to all applicable rights and remedies of a secured party under applicable law.
- Payment Due Date. Client must pay all invoices within fifteen (15) days of the invoice date, unless expressly set forth to the contrary in a Service Order, Purchase Quote or other Instrument. All prices are quoted in U.S. dollars, and Client must pay all charges or invoices in U.S. dollars. If at any time or for any reason, Prosper has cause to question Client’s ability to perform, Prosper may demand such assurances of Client’s performance as Prosper deems necessary in its discretion, including payment in advance for all shipment of Goods. If Client fails within ten (10) calendar days of Prosper’s demand to provide Prosper with such assurance, Prosper may suspend its performance, cancel any order then outstanding, receive reimbursement for its reasonable and proper cancellation charges and collect, without limitation, any sums due and owing, its reasonable cancellation charges, and all damages resulting from Client’s default. All invoices are fully earned when due and non-refundable when paid.
- Payment Methods. Prosper will accept payments from Client using any of the following payment methods: (i) check mailed to Prosper at the payment address set forth on the Service Order, Purchase Quote, or invoice, (ii) Electronic Funds Transfer ("EFT") using the CTX (Corporate Trade Exchange) format, and (iii) VISA, MasterCard, and American Express, subject to a 3% convenience fee.
- Disputed Charges. Client must notify Prosper of any charge disputed in good faith, with supporting documentation, within sixty (60) days from the invoice date, or Client will be deemed to agree to such charges and no adjustments to charges or invoices will be made. Client shall continue to be responsible to pay for the charges by the due date, other than those charges that are being reasonably disputed in good faith.
- Non-Payment; Late Payment. Client will pay interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, with respect to any amounts not paid when due, other than amounts being reasonably disputed in good faith under these MTCs. Client will reimburse Prosper for all costs, including reasonable attorneys’ fees, court costs, bank charges and other consequential fees and expenses, if Prosper utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any check tendered by Client is returned for insufficient funds, Client will pay, in addition to the invoice amount and any interest due, an NSF fee equal to the greater of $30 or five percent of the amount of the check.
- Taxes. Prosper’s prices do not include sales, use, excise or other similar taxes. Client will pay, and Prosper reserves the right to collect in arrears, all sales, use, excise or other taxes (other than taxes based on Prosper’s net income), fees or charges for universal support mechanisms (including without limitation any and all federal or state Universal Service Fund charges) or other charges of any nature whatsoever, now or hereafter imposed or assessed on Prosper, by any foreign, federal, state/provincial, county or local government authority upon or with respect to the Goods, Subscription Services, or Professional Services provided. If Client claims exemption from charges, Client must provide Prosper with a current, valid exemption certificate from the applicable regulatory authority. In all events, payment of Prosper invoices shall not be dependent upon a Client-generated purchase order.
- Client Purchase Order. If Client desires for a Prosper invoice to reference a Client purchase order, Client shall deliver to Prosper a written purchase order within five (5) days of the execution of a Service Order or Purchase Quote. As set forth in Section 16(d) below, however, the Agreement constitutes the entire agreement between the parties and will not be changed by any such Client purchase order, which the parties agree is issued for administrative purposes only and referenced only as an accommodation by Prosper. If there are any additional, inconsistent or conflicting terms between the Agreement and a Client purchase order, the Agreement shall prevail and any additional, inconsistent or conflicting terms contained in a purchase order shall be null and void and are hereby rejected by Prosper.
6. Credit Evaluation
If Prosper extends credit to Client, Client hereby authorizes Prosper, to the extent permitted by applicable law, to request, obtain and exchange credit information regarding Client as needed for credit evaluation purposes.
7. Intellectual Property
- Prosper Intellectual Property. As between Prosper and Client, Prosper owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Subscription Services (including any custom application(s) developed for Client or resulting from a collaboration between Prosper and Client), the Prosper Equipment and the network that may be utilized to provide the Subscription Services, (ii) any software or hardware provided by Prosper to Client to facilitate Client’s utilization of the Subscription Services, (iii) any domain names provided by Prosper in connection with the provision of the Subscription Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by Prosper by reference to the Subscription Services, Prosper’s network and Client’s usage of the Prosper Subscription Services (all of the foregoing intellectual property being the "Prosper Transactional IP"). Unless expressly set forth to the contrary in a Service Order, Purchase Quote or other Instrument, Client will have no right, title or interest in or to the Prosper Transactional IP other than the limited right to use the same in connection with the Services.
- Client Intellectual Property. As between Client and Prosper, Client owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in any data or communications transmitted or processed by Client through the Subscription Services (the "Client Content"), (ii) in any domain names provided by Client in connection with the utilization of the Subscription Services, and (iii) in any data generated solely by Client that identifies Client or any of Client’s employees or any of Client’s vendors, Clients or trading partners (all of the foregoing intellectual property being the "Client Transactional IP"). Unless expressly set forth to the contrary in a Service Order, Purchase Quote or other Instrument, Prosper will have no right, title or interest in or to the Client Transactional IP other than the limited right to use the same in connection with the Services.
- Mutual Respect. Prosper agrees to assert no claim of ownership over the Client Transactional IP, and Client agrees to assert no claim of ownership over the Prosper Transactional IP.
8. Data Security and Confidentiality.
- Confidentiality. In connection with the Subscription Services and Professional Service (collectively the "Services"), Prosper and Client will each have access to confidential or proprietary information of the other party that is subject to reasonable limitations and restrictions that are intended to maintain the secrecy and confidentiality of such information (as applicable, "Confidential Information"). Confidential Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, Client lists, financial information and sales and marketing plans. Without limiting the foregoing, the Agreement, the pricing terms referenced therein, and all Prosper Transactional IP shall be considered Confidential Information of Prosper. Without limiting the foregoing, all Client Transactional IP shall be considered Confidential Information of Client. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Confidential Information of the other party disclosed or made available to it, except for use of such Confidential Information as required in connection with the performance of its obligations or use of the Services hereunder. Each party (as applicable, a "Recipient") will (i) treat the Confidential Information of the other party (as applicable, a "Discloser") as secret and confidential, (ii) limit access to the Discloser’s Confidential Information to those of the Recipient’s employees who require it in order to effectuate the purposes of the Agreement, and (iii) not disclose the Discloser’s Confidential Information to any other Person without the prior written consent of the Discloser. Notwithstanding the foregoing, however, the following shall not be considered Confidential Information: (i) any information that the Recipient can demonstrate was within its legitimate possession prior to the time of disclosure by the Discloser; (ii) any information that was in the public domain prior to disclosure by the Discloser; (iii) any information that, after disclosed by the Discloser, comes into the public domain through no fault of the Recipient, (iv) any information that is disclosed to the Recipient without restriction by a third-party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any trade secret that is no longer protected under applicable law. Notwithstanding its obligations of confidentiality in these MTCs, Recipient may disclose Discloser’s Confidential Information (1) in response to a subpoena or court order, (2) in response to an administrative order or other directive from a governmental entity having jurisdiction over Recipient, or (3) in response to a request from a law-enforcement agency, or (4) as otherwise required by applicable law.
- Use of Client Information. In connection with the Services, Prosper may have access to Client Transactional IP, including Client Confidential Information, and Prosper may use such Client Transactional IP and Client Confidential Information to the extent such use is required to provide the Services, to maintain the security and integrity of the Services and Prosper’s networks, and to facilitate or confirm Prosper’s compliance with its legal obligations; provided, however, that Prosper may not use the Client Transactional IP or Client Confidential Information for any other purpose.
- Disclosure Notification Laws. Client must notify Prosper of any suspected breach in security or integrity affecting Client’s access to the Services, any suspected breach in security or integrity to the Services or Prosper’s networks, or any suspected breach in security or integrity in Client’s Transactional IP. To the extent any applicable law requires Client to notify other Persons of any suspected breach in security or data integrity involving the personal or transactional data of such Persons which data is contained within the Client Transactional IP (such laws being "ServicesDisclosure Notification Laws"), Client shall be wholly responsible for its compliance with such Disclosure Notification Laws. To the extent any such Disclosure Notification Laws obligate Prosper to take any action or provide notification to any person as a consequence of personal or transaction data of any Person contained within the Client Transactional IP, Client shall be wholly responsible for taking such action or providing such notification and Client shall reimburse Prosper for its reasonable costs and expenses to the extent that Prosper performs any such action or provides any such notification.
- Return. Each party agrees to promptly return to the other party or destroy all Confidential Information of the other party in its possession, custody or control in whatever form held (including all copies of all written documents relating to that) upon termination of the Agreement or at any time, or from time to time, upon the request of the other party.
9. Client Compliance
- Client acknowledges that Prosper has no control over the content of information provided by Client and transmitted through the Services (whether visual, written or audible), including without limitation, Client Content, and that Prosper does not examine the use to which Client puts the Services or the nature of the information Client or Client’s users send or receive. Client agrees not to transmit content through use of the Services that infringes any third-party’s intellectual property rights or that is unlawful, threatening, abusive, harassing, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature. Client also warrants to Prosper that any and all distribution lists provided by Client to Prosper: (i) are based upon permission or an "established business relationship" (as defined in 47 C.F.R. § 64.1200); (ii) have not been obtained through Internet harvesting methods or any other unlawful electronic collection of addresses or any other public or private source; and (iii) are complete, accurate and updated for any opt-outs, as applicable and required by law. Client is responsible for maintaining the confidentiality of, and shall not transfer sell or assign, access numbers, passwords and usernames provided by Prosper solely for use by Client. It is the sole responsibility of Client to use Services in accordance with all applicable local, state/provincial, federal and foreign laws and regulations, including but not limited to, the Telephone Consumer Protection Act, codified at 47 U.S.C. § 227, as amended from time to time and by the Junk Fax Prevention Act of 2005, and all other laws and regulations pertaining to telemarketing, facsimile advertising, commercial e-mail, personal data privacy and export control. CLIENT ACKNOWLEDGES THAT THE ADVERTISING OF GOODS, PRODUCTS OR SERVICES BY THE TRANSMISSION OF UNSOLICITED VOICE MESSAGES, FACSIMILES, E-MAIL, OR TEXT MESSAGES MAY BE IN VIOLATION OF FEDERAL, STATE, PROVINCIAL, AND FOREIGN LAWS AND REGULATIONS AND MAY SUBJECT THE ADVERTISER TO PENALTIES. Breach by Client of this Section 9 will constitute grounds for immediate suspension by Prosper of Services and termination of any or all Service Orders and the Agreement. Compliance with this Section 9 requires, among other things, that (i) Client send unsolicited commercial faxes only to parties with whom Client has an "established business relationship" (as defined in 47 C.F.R. § 64.1200), (ii) all messages sent by Client utilizing the Services, in whatever medium, contain the valid name and required contact information for Client (which in the case of faxes sent by Client shall appear on the first page of each fax), (iii) Client provide recipients with a cost-free mechanism by which they may "opt-out" of receiving future calls or transmissions, and (iv) Client honor all such opt-out requests within the shortest reasonable period of time (but no longer than 30 days). Client further acknowledges that, notwithstanding the confidentiality provisions contained herein, Prosper may disclose usage information about Client’s use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.
- In the event Client utilizes Subscription Services to conduct telemarketing activities or disseminates materials offering the availability of goods or products or services, Client specifically warrants to Prosper: (i) that it will undertake all required actions necessary to comply with applicable federal, state/provincial or foreign "Do Not Call" and telemarketing registration statutes and regulations and (ii) Client will not utilize the Subscription Services in a manner which results in a violation of any applicable laws or regulations with respect to such Subscription Services.
- When Prosper provides Client with assigned telephone and/or facsimile numbers for processing opt-out requests, Client understands and acknowledges that such numbers and any associated automated functions are provided merely as an administrative convenience to Client and that the processing of such opt-out requests is Client's sole responsibility. Prosper disclaims all responsibility for and authority over, the receipt and processing of any opt-out requests.
- Client represents, warrants and covenants to Prosper that Client will not, directly or indirectly, use the Services in furtherance of or in connection with any activity that violates applicable laws and regulations (i) relating to export restrictions administered by the Department of Commerce Bureau of Industry and Security, (ii) relating to arms and defense weapons administered by the Department of State’s Directorate of Defense Trade Controls, or (iii) relating to economic and trade sanctions imposed by the Department of Treasury Office of Foreign Asset Control.
10. Service Errors and Remedies
- Service Performance. Prosper will provide the Subscription Services in accordance with Prosper’s service descriptions published on its website from time to time and and otherwise as provided by the applicable Service Order and SLA. Prosper is not responsible, and disclaims any obligation, to provide or comply with any special instructions, additional specifications, or requirements not listed in the website descriptions, Service Order and SLA applicable to the Subscription Services.
- DISCLAIMER. PROSPER’S SUBSCRIPTION SERVICES RELY ON THE INTEROPERABILITY OF PROSPER’S SUBSCRIPTION SERVICES WITH THE NETWORKS OF THIRD PARTIES, PUBLIC SWITCHED TELEPHONY NETWORKS, INTERNET ACCESS PROVIDERS, INTERNATIONAL SATELLITE SERVICES AND OTHER COMMUNICATIONS FACILITIES AND CAPABILITIES MAINTAINED BY PERSONS OUTSIDE OF PROSPER’S CONTROL. PROSPER CANNOT AND DOES NOT GUARANTEE AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY THAT ITS SUBSCRIPTION SERVICES WILL BE AVAILABLE AT ALL TIMES, THAT ITS SUBSCRIPTION SERVICES WILL BE FREE FROM ERRORS, THAT ITS NETWORKS WILL BE COMPLETELY SECURE, OR THAT ITS SUBSCRIPTION SERVICES WILL BE FIT FOR THE PURPOSE INTENDED BY CLIENT.
- SOLE REMEDY. CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND PROSPER’S SOLE OBLIGATION, FOR ANY FAILURE OF PROSPER’S SERVICES TO PERFORM AS REQUIRED BY THE AGREEMENT, SHALL BE FOR PROSPER AT ITS OPTION, TO RE-PERFORM THE DEFECTIVE SERVICES AT NO COST TO CLIENT, OR, IN THE EVENT OF UNAVAILABILITY OF THE SUBSCRIPTION SERVICES FOR PERIODS IN EXCESS OF THOSE SET FORTH IN THE APPLICABLE SLA, IF ANY, ISSUE CLIENT A SERVICE LEVEL CREDIT IN THE AMOUNT SET FORTH IN THE APPLICABLE SLA. PROSPER SHALL HAVE NO OBLIGATION, HOWEVER, IN RESPECT OF ANY INTERRUPTION, UNAVAILABILITY OR DEFECTS IN THE SERVICES (I) CAUSED BY FACTORS OUTSIDE OF PROSPER’S REASONABLE CONTROL, (II) THAT RESULT FROM ANY ACTIONS OR INACTIONS OF CLIENT OR ANY THIRD PARTIES, (III) THAT RESULT FROM CLIENT’S EQUIPMENT OR ANY THIRD-PARTY EQUIPMENT THAT IS NOT WITHIN THE SOLE CONTROL OF PROSPER, AND (IV) DUE TO ANY SCHEDULED DOWN-TIME DURING A SCHEDULED MAINTENANCE PERIOD.
- Prosper shall defend, indemnify and hold harmless Client, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively, the "Client Indemnitees") from and against any and all claims, losses, damages, costs, penalties, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees and expenses) (collectively, "Losses") which any Client Indemnitees may suffer, incur or sustain to the extent resulting from or arising out of (i) any third-party claim or suit alleging that the Services infringe any U.S. patent, copyright or trade secret existing on the date of the Agreement (each, an “IP Infringement Claim”), or (ii) personal injury or death and property damage caused by Prosper’s intentional or willful misconduct; provided, however, that any such indemnification shall not apply to the extent that any Loss arises out of Client’s or Client User’s (as defined in Section 11(b)) willful misconduct, negligence, failure to comply with any applicable laws, rules or regulations or breach of the Agreement. Prosper shall have sole control of the defense and all negotiations for settlement in any matter subject to indemnification under this Section 11(a). Notwithstanding the foregoing, however, Prosper will have no obligation to indemnify any Client Indemnitee for any IP Infringement Claim arising from or in connection with: (A) any unauthorized use of the Services by Client or other persons or entities accessing the Services through Client which results in violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third-party, or constitutes the unauthorized use or misappropriation of any trade secret of any third-party; (B) modification of the Services by Client without Prosper’s prior written consent; (C) any use of the Services in combination with other products, equipment, or software that is neither supplied by Prosper nor expressly authorized in writing by Prosper for use by Client; or (D) the use of Subscription Services by Client, or any other person or entity that accesses the Subscription Services through Client for illegal or fraudulent purposes or in a manner that violates this Agreement; or (D) use of the Subscription Services with third-party products or services where third-party products or services, or Client’s Content, contribute to or causes the infringement.
- Client shall defend, indemnify and hold harmless Prosper, its affiliates and their respective present, former and future officers, directors, employees, agents, members, licensors and Suppliers, and their respective heirs, legal representatives, successors and assigns (collectively the "Prosper Indemnitees"), from and against any and all Losses which any of the Prosper Indemnitees may suffer, incur or sustain to the extent resulting from or arising out of (i) the breach by Client or any Person accessing the Services through Client or Client’s account (a "Client User") of any representation, warranty, covenant or obligation contained in the Agreement, (ii) the Client Content or the use of the Services by Client or any Client User other than as set forth in the Agreement, (iii) violation by Client or any Client User of Prosper’s Acceptable Use Policy, (iv) violation or alleged violation by Client or any Client User of any applicable laws or regulations with respect to the Services, including but not limited to, any claims that Client’s use of the Services violated the rights of any third-party (including those claims relating to the content provided by Client or any Client User or Prosper’s use of distribution lists on behalf of Client or any Client User), claims relating to the transmission of unsolicited documents, or the attempted transmission of a document to a residence telephone or for any errors in data or distribution information provided by Client or any Client User, (v) claims or actions of third parties arising from the Client Content or Client’s or any Client User’s use of the Services, and (vi) any IP Infringement Claims of any third-party relating to any Client Content or Client specifications utilized by Prosper in providing the Services.
- In connection with any claim that may be subject to indemnification under this Section 11, the party seeking indemnification (the "Indemnified Party") shall provide the party providing indemnification (the "Indemnifying Party") written notice of such claim promptly after receipt of it; provided, however, that the failure of an Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the defense or settlement of such claim is prejudiced thereby.
- If an injunction, decree or judgment is, or in Prosper’s sole discretion is likely to be, entered providing that Client may not use the Services as contemplated in the Agreement, Prosper may, at its sole option and expense, either (i) procure for Client the right to use the Services or affected part thereof as provided in the Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate the applicable Service Order upon written notice to Client.
- PROSPER’S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN SECTION 11(b) STATE THE ENTIRE LIABILITY AND OBLIGATION OF PROSPER, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED IP INFRINGEMENT CLAIM RELATED TO THE SERVICES.
12. Limitations on Liability
- a. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, ALL SERVICES, GOODS, AND SOFTWARE PROVIDED UNDER THE AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND PROSPER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, GOODS OR ANY SOFTWARE PROVIDED UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND PROSPER HEREBY EXPRESSLY DISCLAIMS THE SAME. PROSPER IS NOT THE MANUFACTURER OR DEVELOPER OF ANY GOODS OR SOFTWARE. ACCORDINGLY, ONLY SUPPLIER’S WARRANTIES SHALL APPLY TO GOODS AND SOFTWARE, AND CLIENT SHALL LOOK SOLELY TO THE SUPPLIER FOR WARRANTY CLAIMS. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY GOODS AND SOFTWARE PROVIDED TO CLIENT HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, AND PROSPER EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES. PROSPER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. PROSPER CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET, AND PROSPER EXPRESSLY DISCLAIMS ANY SUCH WARRANTY OR GUARANTY.
- NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OR INTERRUPTION OF DATA OR COMPUTER TIME, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES, OR SIMILAR ECONOMIC LOSS, OR FOR ANY PATENT, TRADE SECRET OR COPYRIGHT INFRINGEMENT (EXCEPT TO THE EXTENT PROVIDED IN SECTION 11), OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICE ORDER, OR (EXCEPT AS PROVIDED IN SECTION 12(d)) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD-PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES. PROSPER WILL NOT BE LIABLE TO ANY PARTY, INCLUDING BUT NOT LIMITED TO CLIENT, FOR THE CONTENT OF INFORMATION TRANSMITTED BY CLIENT THROUGH THE SERVICES. PROSPER WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, PROSPER’S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, THE SERVICES, ANY GOODS OR SOFTWARE PROVIDED BY PROSPER, ANY PURCHASE QUOTE, OR ANY SERVICE ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CLIENT TO PROSPER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR EVENTS GIVING RISE TO SUCH LIABILITY.
- THE LIMITATIONS CONTAINED IN SECTIONS 12(b) AND 12(c) APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), OTHER THAN CLAIMS BASED ON FRAUD OR INTENTIONAL AND WILLFUL MISCONDUCT. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS CONTAINED IN SECTIONS 12(b) AND 12(c) SHALL NOT APPLY TO LIABILITY ARISING ON ACCOUNT OF PROSPER’S OR CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 OR TOTHE MINIMUM COMMITMENT OBLIGATIONS OF SECTIONS 2(d) and 2(f)(ii).
- ALL LIMITATIONS OF LIABILITY APPLICABLE TO PROSPER CONTAINED IN THIS SECTION 12 SHALL ALSO BE APPLICABLE TO PROSPER’S SUPPLIERS.
- No claims of any nature, whether based on contract, tort, strict liability or otherwise, may be brought against Prosper more than twelve (12) months after the event or events giving rise to such claim.
- General. Prosper and Client each shall maintain reasonable insurance coverage through their respective carriers. Such insurance must include, at a minimum, general liability coverage in amounts of at least $1 million per occurrence, $3 million annual aggregate, and workers compensation coverage in amounts required by law.
- Equipment. For any Prosper Equipment located at a Client location, Client shall maintain special form insurance against loss, theft or damage, in an amount not less than the new replacement value of the Equipment. Client shall name Prosper as an additional insured/loss payee by policy endorsement. Client shall deliver written evidence of such insurance satisfactory to Prosper prior to delivery of Prosper Equipment to Client’s location and thereafter within thirty (30) days of request. If Client fails to obtain or maintain such insurance, Prosper will have the right, but not the obligation, to obtain insurance in such forms and amounts as Prosper deems reasonable to protect Prosper’s interests, and the expense for said insurance shall be paid by Client on demand by Prosper. Prosper will discontinue such insurance (and refund to Client any premiums refunded to Prosper) when Client provides satisfactory evidence of the insurance required hereunder. For any Client Equipment located at any Prosper location, Client shall maintain special form insurance against loss, theft, or damage, in an amount not less than such Client Equipment’s new replacement value. Client shall bear all risk of loss to Client Equipment at any Prosper location.
The Agreement shall begin on the date a Service Order or Purchase Quote is executed by Client and shall continue until termination or expiration in accordance with the Agreement.
15. International Provisions
- Scope of this Section. The provisions of this Section 15 apply to (i) any Client that is organized under the laws of any jurisdiction outside of the United States (a "Non-U.S. Company"), any Client that has a subsidiary that is a Non-U.S. Company, or any Client that is controlling, controlled by or under common control with any Non-U.S. Company or any person who is not a U.S. citizen, (ii) any Client that is receiving or utilizing any Services under the Agreement at a location outside the U.S., or (iii) any Client that at any time pays Prosper for any Services using funds originating outside the U.S.
- Compliance with OFAC Regulations. Client represents and warrants that neither the Client, not any of its subsidiaries, nor any Person controlling, controlled by or under common control with the Client, is (i) on the list of Specially Designated Nationals and Blocked Persons maintained by the United States Department of the Treasury, Office of Foreign Asset Control (the "US-OFAC") (currently available at http://treas.gov/offices/enforcement/ofac/sdn/index.shtml) or (ii) is subject to any sanctions programs currently managed by US-OFAC (collectively, the "OFAC Sanctions"). Client agrees to notify Prosper promptly in writing if the foregoing representation should ever cease to be true. Client further agrees to make no payment to Prosper if such payment would be prohibited by any OFAC Sanctions.
- Independent Contractor. Prosper and Client are independent contractors of each other. The parties have not created the relationship of principal and agent, employer and employee, master and servant, partners, or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. Any controversy or claim arising out of, or relating to, or in connection with the Agreement or the relationship of the parties, the formation of the Agreement or the breach of the Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of Delaware (without regard to its rules governing conflicts of law). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. Article 2 of the Uniform Commercial Code as adopted and implemented by the State of Delaware shall not apply to the Agreement. ANY CONTROVERSY, CLAIM, SUIT, ACTION OR PROCEEDING ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE AGREEMENT OR THE RELATIONSHIP OF THE PARTIES, INCLUDING ANY CLAIM BASED UPON OR ARISING FROM AN ALLEGED TORT, MUST BE BROUGHT EXCLUSIVELY IN IN THE STATE OF ALABAMA, IN JEFFERSON COUNTY. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH CONTROVERSY, CLAIM, SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. Client may bring claims against Prosper only in Client’s individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
- Headings. The headings herein are for convenience only and are not part of these MTCs.
- Entire Agreement; Amendments. The Agreement (including these MTCs and any applicable Instruments) supersede all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and the Agreement (including these MTCs and any applicable Instruments) together constitute the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any other documents, discussions, negotiations, agreements or communications, this Agreement shall override and control, provided however that in case of a conflict between any Service Order or Purchase Quote and these MTCs, such Service Order or Purchase Quote, as applicable, shall control. No additional terms or conditions relating to the subject matter of the Agreement shall be effective unless approved in writing by an authorized representative of Client and Prosper. Except as otherwise provided in this Section 16(d), the Agreement may not be modified or amended, orally or otherwise, except by a subsequent agreement in writing executed by the parties hereto. For the avoidance of doubt, if Client requires use of Client’s form purchase order or similar document in connection with any of the Services to be performed or Goods or Software to be provided hereunder, Client hereby acknowledges and agrees that to the extent such purchase order or similar document contains any pre-printed or other terms and conditions, such terms and conditions, whether in addition to or in conflict with the Agreement, shall have no effect whatsoever and the Agreement shall govern the relationship between Prosper and Client. Notwithstanding the foregoing, Prosper may amend these MTC, its Acceptable Use Policy, and any SLA, at Prosper’s election, by: (i) posting a revised version on its website or at a successor website as determined by Prosper (the "Prosper Website"); (ii) delivering the amended MTC, Acceptable Use Policy, or SLA to Client in accordance with the notice provisions provided herein (such delivery may be included in invoices for the Services, Goods or Software delivered to Client); or (iii) by other reasonable means as permitted by applicable law. An amended Acceptable Use Policy shall automatically be effective upon the earlier of: (A) the date indicated on the Prosper Website or (B) Client’s next billing cycle following posting or delivery to Client. CLIENT AGREES TO BE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING THE PROSPER WEBSITE TO OBTAIN TIMELY NOTICE OF ANY SUCH CHANGES TO PROSPER’S THEN-CURRENT ACCEPTABLE USE POLICY. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED ACCEPTABLE USE POLICY, CLIENT WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED ACCEPTABLE USE POLICY. No such amendment by Prosper shall serve to constitute a default or termination by Prosper of any Service Order, Purchase Quote or the Agreement, nor shall such amendment serve to be a basis for Client’s termination of any Service Order, Purchase Quote or the Agreement.
- Severability. Whenever possible, each term of the Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision or portion of any provision of the Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, however, it is the intention of the parties that such provision will be severed from the Agreement, and, if capable of substantial performance, the remaining provisions of this Agreement will be enforced as if this Agreement were entered into without the invalid provision.
- Notices. Any notices or demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given (i) upon the date of delivery if delivered in person or by an overnight nationally-recognized delivery service (such as FedEx or UPS), (ii) upon receipt if delivered by facsimile to the fax number set forth in the Service Order or Purchase Quote, the receipt of which is confirmed by the recipient, or (iii) upon the expiration of three (3) days after the date of posting if mailed by certified mail, postage prepaid, to the address set forth in the Service Order or Purchase Quote. Prosper may change its address or facsimile number for purposes of the Agreement by notice in writing to Client as provided herein, and Client may change its address or facsimile number for purposes of the Agreement by notice in writing to Prosper as provided in the Service Order or Purchase Quote. Prosper may give written notice to Client via e-mail to the Client’s e-mail address as maintained in Prosper’s billing records.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of the Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. Client may not assign or transfer the Agreement or any of its rights or obligations hereunder, without the prior written consent of Prosper. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Prosper may assign its rights and obligations under the Agreement and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Client. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one (1) year after the cause of action has arisen.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under the Agreement (other than Client’s failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation: fire, flood, earthquake, lightning strike, hurricane, tornado, typhoon, tsunami, act of God, national emergency, act of civil or military authority, labor disputes, labor strike, work stoppage, embargo, acts of war, act of terrorism, insurrection, riot, sabotage, interruptions of transportation or communications, supply shortages, epidemics or pandemics, failure of the Internet, failure of the local loop of the local exchange carrier, vandalism or "hacker" attack, power brownout or blackout, any law, order, regulation or other action of any regulatory authority, or the failure of any third-party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, to grant, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
- Export Control. Client shall not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with the Agreement without first complying with any applicable export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Client operates or does business.
- Telephone Monitoring. To ensure that its clients receive quality service, Prosper randomly may monitor and record phone calls between its client service and technical support personnel and its clients, including Client. Client hereby consents to such monitoring.
- Publicity. Prosper may publicly refer to Client, orally and in writing, as a client of Prosper. Any other reference to Client by Prosper may be made only in accordance with this Section 16(n). The parties shall consult with each other in preparing any press release, public announcement, case study or other form of release of information concerning an Agreement or the transactions contemplated hereby that is intended to provide such information to the news media or the public (a “Press Release”). Neither party may issue or cause the publication of any such Press Release without the prior written consent of the other party. However, nothing herein prohibits either party from issuing or causing publication of any such Press Release to the extent that such action is required by applicable law or the rules of any national stock exchange applicable to such party or its named affiliates, in which case the party wishing to make such disclosure will, if practicable under the circumstances, notify the other party of the proposed time of issuance of such Press Release and shall consult with and allow the other party reasonable time to comment on such Press Release in advance of its issuance.
- Language. The English language version of these MTCs shall control. Agreements provided in languages other than English are provided for ease of reference only, and the Agreement, and any associated documentation, shall be written and signed in English.
- Site Review. Provision of Services may be subject to an on-site technical review by Prosper personnel. Such review may uncover site obstructions and/or issues that affect Prosper’s ability to provide Services to the site, or the review may uncover that bandwidth upgrades are necessary to provide Services. In such cases, a new or amended Agreement may be required for Prosper to provide Services, such Agreement to be approved in writing by both parties.
- No Solicitation. During the Term of an Agreement and for one (1) year immediately following the termination or expiration of an Agreement, neither party shall, directly or indirectly, for itself, or on behalf of any other person, firm, corporation or other entity, whether as principal, agent, employee, stockholder, partner, member, officer, director, sole proprietor, or otherwise, solicit, participate in, or promote the solicitation of any employee of the other party to leave such employment, or hire or engage such employee. In the event either party violates this non-solicitation agreement, the violating party shall pay to the other party, as reasonable liquidated damages, an amount equal to one hundred fifty percent (150%) of the employee’s then current annualized salary at the non-violating party, including bonuses.
- Survival. These MTCs shall be valid as to any obligation incurred prior to termination of any Service Order or Purchase Quote. The provisions of the Agreement that by their nature should survive any termination or expiration of the Agreement and any Service Order or Purchase Quote, shall survive any such termination or expiration (including, without limitation, Sections 2(d), 2(f), 5, 7, 8, 9, 10, 11, 12, 15 and 16).