Proserva Inc. (“Proserva”) provides access to its proprietary software platform, including through its website (the “Platform”) located at www.proserva.co subject to the terms and conditions set forth in this software as a service subscription agreement (the “Agreement”).
‍
BY CLICKING THE “AGREE” BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE PLATFORM AND MUST CLICK “DISAGREE.” NOTWITHSTANDING THE FOREGOING, USING THE PLATFORM INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.

1. Platform and Access
‍
a. Authorized Access. Subject to this Agreement and payment of any agreed-upon fees, Proserva authorizes you, on a temporary, limited, non-sublicensable, and non-transferable basis, to access and use those portions of the Platform available to you based on your account during the Term (as defined below) of this Agreement. You may not share your account, username, or password with any other individual. You are solely responsible for any and all activities made under your account, including, but not limited to, exceeding the number of authorized users.

Account Creation. To use the Platform, you must create an account with us. We may also require that you request or receive an invite in order to create an account. We reserve the right to decline any such request or refuse access to the Platform without providing any reason. You agree that all information you provide to us is accurate. Please carefully review any information before submitting it to us. It is your responsibility to ensure this information is accurate and to inform us of any changes to this information. You can access and update your account information through the Platform.

Modifications. Access to the Platform is permitted on a temporary basis. Proserva may, in its sole discretion, at any time and without notice, modify the terms of this Agreement, the content and capabilities of the Platform, subscription fees and any other aspect of this Agreement or the Platform. You are responsible for reviewing communications from Proserva and reviewing the Agreement from time to time. You do not have the right to modify this Agreement without Proserva’s written consent. Proserva will provide any paid subscribers with prior notice of any material changes, including changes to subscription fees.

b. Availability. You agree that from time to time the Platform may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Proserva may undertake from time to time; or (iii) causes beyond the control of Proserva or which are not reasonably foreseeable.

1.5 Inaccessible or Inoperable is defined as the Platform having no availability, expressed in minutes.

Remedies for Inaccessibility or Inoperability. If the Platform is inaccessible or inoperable in excess of a certain amount of time per day, Customer will be entitled, upon written request, to a credit percentage set forth below:  
‍
All times listed immediately below are per business day:
‍
a. If Downtime is from 120 to 240 minutes, Customer is eligible for a Fee Credit Percentage of 5% of the overall contract price
‍
b. If Downtime is 241 minutes or greater, Customer is eligible for a Fee Credit Percentage of 7% of the overall contract price.

General Obligations. You agree to abide by any rules Proserva publishes with respect to use of the Platform and any other current or future rules and regulations communicated to you either by posting such rules or regulations to the Platform or delivered to you by e-mail. Any such rules or regulations hereby incorporated into this Agreement by this reference. You further agree that you will comply with all applicable laws, rules, and regulations whether local, state, federal, or otherwise.

Privacy. You are solely responsible for ensuring that no content containing any personal information of any third party is uploaded to the Platform or otherwise made available to any unauthorized third party, without first obtaining authorization from such third party. Personal information includes, but is not limited to, names, photographs, addresses, and other personal information.

Compatibility and Equipment. You are responsible for providing, maintaining, and ensuring compatibility for all hardware, software, and other requirements for your use of the Platform, including, without limitation, telecommunications, internet access connections, web browsers or other equipment, and services required to access and use the Platform.

Security. You are responsible for maintaining the confidentiality of the password(s) assigned to you. You shall be solely responsible for any authorized or unauthorized use of your username, password, and access to your account by any person. You agree to accept responsibility for all activities that occur under your account or password. You must notify us immediately if you know of, or have reason to believe, that anyone has obtained access to your credentials, or if you otherwise become aware of any unauthorized use of your account or any other security breach.

Suspension. We may suspend your access to the Platform at any time if, in our opinion, this is reasonably necessary to preserve the security and proper operation of the Platform and any related products or services, if you have failed to comply with any of the terms of this Agreement, or if any details you provide for the purposes of registering prove to be false.

User Content; Comments. You represent and warrant that any information, data, documents, or any other content (“User Content”) that you upload or otherwise provide in connection with the Platform is either owned by you, or that you have the legal right to upload or provide such User Content. You agree to indemnify, hold harmless, and defend Proserva and its affiliates from and against any action, cause, claim, damage, liability, or loss, including reasonable costs and attorneys’ fees, asserted by any person, arising out of, or relating to a claim that your upload or provision of User Content infringes or violates the rights of any third party. If you submit information or content to Proserva including, without exclusion, comments, creative ideas, suggestions, proposals, or other materials, whether online, by email, or otherwise (collectively, “Comments”), you agree that Proserva may, at any time and without restriction, use in any medium any Comments that you forward to us. We are under no obligation to pay compensation for any Comments.

By using the Platform, you agree not to do any of the following, directly or indirectly through a third party:

(i) intentionally or unintentionally violate any local, state, or federal law;
‍
(ii) upload any files that contain software viruses or other harmful code, programs, or materials; or

(iii) interfere with the operation of Proserva’s servers or other computers or Internet or network connections;

(iv) make any commercial use of the Platform; (v) reproduce, duplicate, copy, display, rent, sell, resell, or otherwise exploit this Platform or its contents, descriptions, materials, or information for any purpose without the express written consent of Proserva; and
‍
(vi) data-mine, scrape, crawl or use any other technology or process to gather, extract, or reproduce any information, data, or other materials associated with the Platform or Proserva.

You further agree not to take any action directly, or indirectly through a third party, that (a) infringes or otherwise violates any third party’s rights including, but not limited to, copyright, trademark, trade secret, patent, or privacy. You also shall not use the Platform in any matter that contains political campaigning, or contains any content that could be considered harmful, threatening, abusive, harassing, vulgar, obscene, sexually explicit, profane, hateful, defamatory, libelous, invasive of the privacy of another, or unlawful, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law, or is otherwise objectionable in the sole discretion of Proserva. Proserva may, but has no obligation to, monitor, edit or remove content that Proserva determines, in our sole discretion, are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates this Agreement or any party’s rights.

In recognizing the specific legal requirements that may apply to users in certain jurisdictions, Proserva acknowledges the potential applicability of the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. Chap. 13, and the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g. As such, the following provisions are included:

a. Minnesota Government Data Practices Act: If you are subject to the Minnesota Government Data Practices Act, you agree that your use of the Platform will comply with all provisions of the MGDPA. This may include, but is not limited to, the proper handling, storage, and transmission of data as required under Minn. Stat. 13.05, Subd. 11.

b. Family Educational Rights and Privacy Act: If FERPA applies to your interactions with the Platform, you are responsible for ensuring that your use of Proserva's services complies with all relevant FERPA regulations. This includes the proper management and protection of educational records and personally identifiable information.

You acknowledge that it is your responsibility to determine whether either the MGDPA or FERPA applies to your use of the Platform and to comply accordingly. Proserva disclaims any liability for non-compliance with these statutes.

COPPA Compliance: Proserva is committed to complying with the Children’s Online Privacy Protection Act (COPPA). While Proserva provides services primarily to educational institutions and not directly to children under the age of 13, certain functionalities of our service may involve the handling of personal information of children under 13 as defined under COPPA.

School Responsibility: It is the responsibility of the educational institutions (“Schools”) that utilize Proserva’s services to ensure compliance with COPPA. This includes, but is not limited to, obtaining verifiable parental consent when collecting, using, or disclosing any personal information from children under 13.

‍Parental Consent Agreement: Before uploading or entering any personal information of children under 13 into Proserva’s system, Schools must have a documented agreement with the parents or legal guardians of the children. This agreement must explicitly authorize the School to provide such personal information to Proserva for the purposes outlined in our service.

Use of Information:Schools must ensure that the use of Proserva’s service in relation to children’s personal information is strictly for educational purposes and in compliance with COPPA. Schools agree to provide Proserva with evidence of the required parental consents upon request.

Indemnification:Schools agree to indemnify, defend, and hold harmless Proserva from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that alleges misuse of children’s personal information in violation of COPPA or any other applicable laws.

Confirmation of Understanding:By using Proserva’s services, the School confirms that it understands and agrees to abide by the responsibilities outlined in this section regarding the handling of children’s personal information under COPPA.

Fees. You agree to pay all applicable fees including, without exclusion, the subscription fees as agreed to in writing between you and Proserva (“Fees”). You agree to pay for all charges and usage fees incurred prior to termination or cancellation of the Agreement. Refunds will not be issued unless required by law. This payment obligation shall survive termination or cancellation of this Agreement for any reason whatsoever.

Payments. Proserva may, at its option, require paid subscribers to maintain at least one valid payment method for payment of Fees. Your payment information may be processed and stored through a third-party payment processor. By creating an account you hereby authorize Proserva and its third-party vendors to process such payments. You further acknowledge that your submission of payment will be subject to our vendor’s own policies, including terms and conditions and privacy policies.

Support. You may report an error with the Platform through email at Josh@proserva.co. Proserva will respond to the initial email reporting the error to acknowledge receipt within 2 business hours. Critical errors, those that prevent participants from accessing or completing coursework or quizzes, will be resolved or a reasonable workaround will be provided, within 6 business hours. Non-critical errors, including, but not limited to, those pertaining to the creation of events, displaying/exporting data, posting in the forum, etc. will be resolved or a reasonable workaround will be provided, within 18 business hours. Proserva does not warrant that the error will be fixed and nothing in the Section will be construed as Proserva warranting that an error will be fixed, or will be fixed to your satisfaction, provided a reasonable workaround is available.

Information Sharing; Usage Data. Subject to limitations and restrictions based on permission levels, you agree and hereby authorize Proserva to communicate with and share certain content, information, and other data with administrators and others associated with your organization. You authorize Proserva to collect, store, aggregate, analyze and disclose anonymous data and information about your use of the Platform (collectively “Usage Data”), which term does not contain any information that identifies you or any individual user). Usage Data will be owned by Proserva and is subject to the provisions of Proserva’s privacy policy, which may be amended by Proserva from time to time and is expressly incorporated by reference in this Agreement. The most recent version of the privacy policy is available at https://proserva.co/privacy.
‍
Intellectual Property. You acknowledge this Agreement only provides you with temporary access to the Platform. This Agreement does not transfer in copyright, trademarks, trade secrets, or any other proprietary rights (“Intellectual Property Rights”). Proserva retains exclusive ownership of all Intellectual Property Rights in and to Platform, Proserva’s websites, and all other software, applications, works of authorship, trademarks, and proprietary materials.

Informational Use Only. The information provided through the Platform is for informational purposes only. Your reliance on any information or content is at your own risk. Proserva cannot and does not guarantee that the Platform will improve the performance of any individual student, educator, or administrator. Proserva is not responsible and does not guarantee the accuracy of any information available in the Platform.

Disclaimer of Warranties:
‍
PROSERVA AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE PLATFORM “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PROSERVA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,  INCLUDING,  BUT  NOT  LIMITED  TO,  IMPLIED  WARRANTIES  OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK
Subject to the availability provisions above, PROSERVA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PLATFORM, THE AVAILABILITY OF CONTENT, THAT THE FUNCTIONS CONTAINED IN THE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE PLATFORM WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROSERVA OR A PROSERVA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

IN NO EVENT WILL PROSERVA, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE THE PLATFORM AND ANY CONTENT OR INFORMATION OBTAINED FROM THE PLATFORM, FROM PROSERVA, OR FROM PROSERVA’S AFFILIATES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS, THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification. You agree to indemnify, hold harmless and defend Proserva, its agents, officers, directors, employees, successors, assigns, and affiliates, from and against any action, cause, claim, damage, debt, liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to (i) your use of the Platform, including any data, content, or information transmitted or received by you; (ii) your breach of this Agreement or any rules or guidelines provided to you by Proserva; and (iii) any prohibited use of the Platform.

Term. This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until terminated by either Party (“Term”). You acknowledge and agree that you remain liable for all fees incurred during the term in which you terminate this Agreement and authorize Proserva to charge your credit card or other payment method for these fees. In the event you terminate the Agreement before the renewal date, Proserva does not provide prorated refunds for the remainder of the then-current month or year, but you will retain access to the Platform through the end of the Term.

Termination by You; Deletion of Account. You may cancel your subscription by notifying Proserva via email at Josh@Proserva.co with at least thirty (30) days prior to the end of the then-current monthly or annual term. If a cancellation request is submitted with less than thirty (30) days’ notice, your account will be billed for the subsequent month or year, but no further renewals will be initiated.

Termination or Suspension. Proserva may terminate this Agreement and your account, or suspend your access (a) upon any breach of the Agreement, including failure to pay any fees due; or (b) if you take any actions or make any statements that Proserva deems to be dangerous, inappropriate, or otherwise pose any harm or risk to Proserva, the Platform, other users, or that otherwise violate the spirt of this Agreement.

Effect of Termination. Following the effective date of termination of the Agreement  the access granted to you ceases and you are no longer authorized to access the Platform or otherwise utilize any services provided by Proserva. You shall pay any amounts due to Proserva, including any Fees, incurred prior to the effective date of termination.

Equitable Remedies and Enforcement. You acknowledge and agree that breach of any of the obligations under this Agreement shall cause irreparable injury and shall entitle Proserva to equitable relief or remedy. The pursuit or securing of equitable relief shall not prohibit or limit Proserva to seek or obtain other remedies provided under the Agreement or by law. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to Proserva.

Governing Law; Jurisdiction; Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the
State of Minnesota. The Parties irrevocably submit and consent to the exercise of subject matter jurisdiction and exclusive personal jurisdiction over each Party by such courts, and hereby irrevocably waive any and all objections which any Party may now or hereafter have to the exercise of subject matter and exclusive personal jurisdiction by such courts.

Force Majeure. Parties shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted, or prevented by any act of God, act of terrorism, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies, or any other act or condition beyond parties  reasonable commercial control.

Entire Agreement; Third-Party Beneficiaries. This Agreement and any documents referenced herein state the Parties’ entire agreement and understanding of the subject hereof. This Agreement supersedes all prior understanding and agreements. Any prior agreement or understandings between the Parties is null and void.

Assignment. Neither party  may assign their rights or delegate their duties under this Agreement without the other party’s  written consent.

Waiver; Severability. No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition. No waiver shall be binding unless executed in writing by the party making the waiver. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision shall be construed by modifying it to the minimum extent necessary to make it enforceable, unless such modification is not permitted by law, in which case that provision is to be disregarded and the other provisions will remain fully effective and enforceable.

Survival. The rights and duties contemplated in Sections 2.6, 3, 6, 7-10, 11.4, and 12 shall survive termination of this Agreement for any reason.