Terms and Conditions of Service

1. General; Incorporation of Other Terms and Privacy Policy

1.1 These Terms and Conditions of Service (this “Agreement”) govern your use of the websites, other digital and electronic platforms, and their associated content, communications, tools, features, functionality and services (collectively, the “Service” or “Services”), whether or not log-in or registration is required to access them, in each case which are owned and operated by Protera Technologies, Inc. (collectively “Protera” or “we”).

1.2 Certain products and services offered by Protera which are governed by this Agreement are also governed by additional terms which are specified in a separate written agreement between Protera and you or your company and/or are accessible directly from the website or other digital or electronic platform through which such products and services are delivered (“Additional Terms”); the terms of this Agreement and all applicable Additional Terms, are referred to in this Agreement as the “Service Terms”. To the extent (but only to the extent) of any conflict between this Agreement and Additional Terms, such Additional Terms shall control with respect to your use of the affected product(s) or service(s) only. We reserve the right, in our sole discretion, to update or otherwise revise or modify all or any part of this Agreement (“T&C Changes”) at any time, and you, as the user, are deemed to be apprised of and bound by all such T&C Changes, effective immediately upon your first use of the Service after the posting and confirmation of such T&C Changes by Protera’s updating the date indicated after the phrase “This Agreement was last updated on” at the end of this Agreement. T&C Changes will only affect your and our respective rights and obligations from and after the effective date of such T&C Changes with respect to you in accordance with the preceding sentence. Your use of the Services after such update constitutes your agreement to the T&C Changes. If you do not wish to agree to the T&C Changes, you should not continue to use the Service.

1.3 By accessing the Service, you affirmatively indicate your binding acknowledgment and acceptance of all Service Terms, including the T&C Changes made by Protera as permitted above, and your agreement to be bound by and comply fully with the Service Terms in their entirety. Failure to comply fully with the Service Terms may result in restriction, suspension, blockage or termination of access and use privileges for all or any part of the Service at any time without prior notice from or liability of Protera, and may result in additional legal actions taken against the offending individuals and organizations, in each case in our sole discretion. If you do not agree to any portion of this Agreement, you may not use the Service (or any portion thereof).

1.4 Registration data and certain other information about you and your activities on the Service are subject to Protera’s privacy policy, which you may review in full at any time at https://www.protera.com/sap/privacy-policy/. You understand that through your use of the Service you consent to the collection, storage and use of this data and information as provided in the Privacy Policy.

1.5 In consideration of your use of the Service, you represent, warrant and covenant to us that:

(a) If you access the Service in your capacity as an employee, owner, or otherwise as an agent of another person or entity, you agree on behalf of yourself and such person or entity, jointly and severally, to be bound by this Agreement. In such a case, references to “you” and “your” shall include such person or entity and every agent acting on their behalf, in any capacity, with respect to the Services; or accessing the Services with such person or entity’s account information and identification.

(b) You are at least 18 years old, you are competent, and you have the capacity and authority necessary to enter into, and perform your obligations under this Agreement, and you are not a person barred from receiving the Service under the laws of the United States or any other applicable jurisdiction.

(c) You will comply with all applicable laws, rules and regulations of all applicable jurisdictions in connection with your use of the Service.

2. General Protera Intellectual Property Ownership Rights.

You acknowledge and agree that the tools and applications, data and other information, content (including its selection and arrangement), services and software (including all text, logos, photographs, graphics, images, video, audio, illustrations, software, html, source and object code, algorithms, business logic, modules, programs, links and other materials), product names, logos, designs, titles, and certain words or phrases, and all other information and content of any kind, in each case displayed on, transmitted through, or accessed or used on, within, or in connection with the Service (all of the foregoing, collectively “Service Content”), are intellectual property protected by copyright, trademark or other proprietary rights of Protera or its licensors, suppliers or other designees, whether or not registered. You acknowledge and agree that Protera reserves and retains, for itself and such third parties, as applicable, all intellectual property and other proprietary rights of any and all kinds in connection with the Service and Service Content. You also agree to comply with any additional copyright notices, information, or restrictions contained in any Service Content available on or accessed through the Service. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Protera for which monetary damages would not be an adequate remedy and, therefore, will entitle Protera to injunctive relief (including specific performance), without the requirement to post bond. If Protera prevails on the merits or enters into a settlement agreement substantially on the terms alleged by Protera, Protera shall be entitled to reimbursement of its legal fees and expenses incurred in obtaining conformance by you with this Section 2. The rights and remedies provided to Protera in this Section 2 are cumulative and in addition to any other rights and remedies available to such party at law or in equity.

3. Registration and Profile Creation.

In order to access certain features of the Service, you will be required to register by providing certain profile and contact information, and we may require or permit you to use your credentials for a third-party platform (such as LinkedIn) to so register (a “Social Sign-On”). In the event that registration is required, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form, and you agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information or another person’s name, likeness, voice, image or photograph. If you provide (or we have reason to suspect that you have provided) any information that is untrue, inaccurate, not current, or incomplete, or there is unauthorized use of your user registration or we suspect fraudulent or abusive activity, we have the right, among other remedial options, to interrupt, restrict, suspend or terminate your current or future use of or access to the Service (or any portion thereof), without notice to you. Your account is for your sole, personal use; you may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You agree to take all reasonable steps to protect the Service from unauthorized access or use. You are solely responsible for the security of your user registration and password and will be solely liable for any use or unauthorized use under same. You agree to cooperate with us in any fraud investigation and use any reasonable fraud prevention measures we prescribe. Failure to cooperate will result in your liability for all fraudulent usage.

4. Use of Service.

Certain General Terms and Use Restrictions

4.1 Protera may change, suspend or discontinue all or any aspect of the Service at any time, including the availability of any feature, database, or Service Content, without prior notice or liability. Information available in any part of the Service does not, and should not be relied upon to, replace the advice of your own professional advisors. (See also Section 8 for certain further disclaimers and limitations of liability.)

4.2 You shall not:

(a) access the Service (or any portion thereof) by any means other than through an interface that is provided by Protera for such purpose;

(b) resell or otherwise make available the use of, or access to, the Service to any third party;

(d) except as otherwise specifically and expressly permitted in this Agreement or the applicable Additional Terms, as the case may be, copy, reproduce, duplicate, download, store, modify, publish, transmit, re-license, transfer or sell, reproduce, create derivative works from, distribute, perform, post, display, or in any way use or exploit any of the Service or Service Content, or any access thereto, in whole or in part except as specifically authorized by Protera in connection with the provision of the Services;

(e) install, upload, post or otherwise facilitate or fail to use commercially reasonable efforts to prevent, the introduction of a virus, worm, Trojan Horse, Easter egg, time bomb, spyware, or any other computer code, file, or similar program that is harmful, invasive or otherwise intended to damage or hijack the operation of any hardware, software, or telecommunications equipment;

(f) otherwise interfere with or disrupt the operation of, or the servers or networks that provide, the Service (or any portion thereof);

(g) remove any copyright, trademark, patent or other proprietary rights notice on any Service Content; or

(h) use any robot, spider, search/retrieval application, or other manual or automatic device or technique to extract, “scrape,” collect, retrieve, index, “data mine,” copy, catalog, download or otherwise reproduce, store or distribute information or content available on the Service (including information about other individuals or companies using the Service or any portion thereof) or in any way reproduce or circumvent the navigational structure or presentation of the Service (or any portion thereof).

5. Links to External Sites.

The Service may contain links to, or otherwise point to, sites on the Internet or other electronic or digital media which are owned and operated by third parties (“External Sites”). You acknowledge that External Sites may contain rules and regulations, privacy provisions, confidentiality provisions, transmission of personal data provisions, and other provisions (“External Site Terms”) that differ from the provisions which apply to the Service, and Protera is not responsible for, and expressly disclaims any and all liability for or related to, the availability of, or the content located on or through, any External Site, its External Site Terms, or any Losses (as defined in Section 7.1) that may arise or result from your navigation to or use of any External Sites. You should contact the administrator or webmaster for those External Sites if you have any concerns regarding the links to them, the content located on such External Sites, or their External Site Terms.

6. Equipment, Connectivity and Communications Providers.

6.1 You are solely responsible for obtaining and maintaining all wired, wireless and other telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Service, and paying all charges related thereto (including any third-party fees or charges which may be levied for transmission or receipt of communications in connection with the Service).

6.2 Protera does not operate the networks of, or have any control over the operations of, the wireless or other communications service providers through which you may access the Service. Accordingly, (i) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Service (see also Section 8 for certain other disclaimers and limitations on liability) and (ii) we cannot guarantee the privacy or security of wireless data transmissions. The wireless device browser is generally pre-configured by your wireless Internet service provider, which you should consult for information about their privacy and security practices. You should not share personal, secret, confidential, sensitive, proprietary or other non-public information through any portion of the Service.

7. General Release and Indemnification; Other Relief.

7.1 You hereby release and agree to indemnify, defend and hold harmless Protera, its affiliates, and all of their respective officers, directors, owners, agents, suppliers, licensors and assigns (collectively, the “Protera Parties”) from and against any and all claims, liabilities, obligations, losses, damages, penalties, demands, actions, suits, judgments, settlements, costs and expenses (including administrative costs, investigatory costs, litigation and settlement costs and experts’, auditors’ and attorneys’ fees and disbursements) of whatever nature (any of the foregoing, “Losses”), whether incurred by or issued against any Protera Party, in connection with any use or alleged use of the Service or any Service Content, or any violation or alleged violation of applicable law or a third party’s rights, in each case by you or under your user name by any person or entity, whether or not authorized by you. Protera reserves the right, at your expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and in such case, you agree to cooperate with Protera’s defense of such claim.

7.2 You acknowledge that the Service contains Service Content that is highly proprietary and confidential in nature and is protected by applicable intellectual property and other laws, and breach of your obligations under this Agreement will cause the Protera Parties and/or its suppliers and licensors irreparable injury that cannot be adequately compensated for by means of monetary damages. You agree that any breach of the Service Terms will entitle Protera to equitable relief (including injunctive relief and/or specific performance). Protera shall not be required to post bond or prove actual damages in connection with any such request for injunctive relief.

8. Disclaimer of Warranties; Limitation of Liability.

8.1 THE PROTERA PARTIES WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES IN ACCORDANCE WITH THE SERVICE DESCRIPTION. THIS IS THE PROTERA PARTIES’ SOLE AND EXCLUSIVE RESPONSIBILITY WITH RESPECT TO THE SERVICES. THE PROTERA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR THE SERVICES AND ALL DATA, INFORMATION, TOOLS, AND OTHER SERVICE CONTENT MADE AVAILABLE THROUGH THE SERVICE ARE PROVIDED STRICTLY “AS IS” AND “AS AVAILABLE.” NO PROTERA PARTY SHALL BE RESPONSIBLE OR LIABLE IN ANY MANNER WHATSOEVER TO YOU OR ANY THIRD PARTY FOR ANY DELAYS, OMISSIONS, INACCURACIES, DELAYS OR FAILURES TO PROVIDE UPDATES OR CORRECTIONS, IN CONNECTION WITH THE SERVICES OR SERVICE CONTENT OR WITH ANY RESULTS OBTAINED THEREFROM. THE PROTERA PARTIES CANNOT AND DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, SECURITY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES OR DATA, INFORMATION, TOOLS, OR OTHER SERVICE CONTENT MADE AVAILABLE THROUGH THE SERVICE, OR THAT THE SERVICE OR THE SERVER(S) ON WHICH THE SERVICE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, WILL MEET YOUR REQUIREMENTS, OR CAN BE RELIED UPON IN ANY RESPECT. NO PROTERA PARTY SHALL BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR INJURY CAUSED, IN WHOLE OR IN PART, BY ITS NEGLIGENCE OR OMISSION IN PROCURING, COMPILING, CALCULATING, INTERPRETING, EDITING, WRITING, REPORTING, TRANSMITTING, OR DELIVERING ANY INFORMATION, DATA, OR OTHER SERVICE CONTENT THROUGH THE SERVICE, OR FOR ANY DELAY OR INTERRUPTION IN CONNECTION THEREWITH. IN NO EVENT SHALL ANY PROTERA PARTY BE LIABLE IN ANY RESPECT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM, TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DECISION MADE OR ACTION TAKEN BY YOU OR SUCH OTHER PERSON OR ENTITY IN RELIANCE UPON ANY SERVICE CONTENT, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ANY OTHER FORM OF DAMAGES WHATSOEVER, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE AND/OR ANY SERVICE CONTENT, INCLUDING LIABILITY OR DAMAGES FOR LOST PROFITS OR GOODWILL, DAMAGES RESULTING FROM INCONVENIENCE, LOSS OF DATA OR LOSS OF USE OF THE SERVICE, OR ANY OTHER LIABILITY OR DAMAGES, WHETHER TANGIBLE OR INTANGIBLE, IN ANY WAY ARISING OUT OF OR CONNECTED WITH THE USE OF OR PERFORMANCE OF THE SERVICE, IN EVERY SUCH CASE EVEN IF ANY PROTERA PARTY HAS BEEN ADVISED OF (OR OTHERWISE MIGHT HAVE ANTICIPATED) THE POSSIBILITY OF SUCH DAMAGES. THE SERVICE (INCLUDING ALL OR PART OF ANY COMMUNITY OR ANY OTHER PORTION OF THE SERVICE) MAY BE DISCONTINUED, LIMITED OR MODIFIED, TEMPORARILY OR PERMANENTLY, IN THE SOLE AND ABSOLUTE DISCRETION OF PROTERA, AT ANY TIME AND FOR ANY REASON, WITHOUT NOTICE AND WITHOUT LIABILITY ON THE PART OF ANY PROTERA PARTY TO ANY PERSON OR ENTITY. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE, THE ACCURACY AND COMPLETENESS OF THE SERVICE CONTENT, AND YOUR USE OF AND RELIANCE ON THE SERVICE AND THE SERVICE CONTENT, IS ASSUMED SOLELY BY YOU.

8.2 WITHOUT LIMITING SECTION 8.1 IN ANY RESPECT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE PROTERA PARTIES TO YOU AND/OR YOUR COMPANY (IF APPLICABLE) FOR ANY LOSSES (AS DEFINED IN SECTION 7.1) IN ANY WAY ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE OR ANY SERVICE CONTENT EXCEED US$100.

8.3 WITHOUT LIMITING SECTION 8.1 OR 8.2 IN ANY RESPECT, TO THE EXTENT THAT ANY OF THE LIMITATIONS OR EXCLUSIONS SET FORTH IN SUCH SECTIONS ARE NOT ENFORCEABLE UNDER APPLICABLE LAW, THE LIABILITY OF THE PROTERA PARTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICE SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

9. Protera Corporate and Business Information.

Corporate and other investor relations types of information and materials about Protera and its businesses which may be accessible via any portion of the Service from time to time (“Corporate Information”) are provided for convenience only, and are relevant only as of their original date or the date specified therein. Current and available information about Protera may change at any time and may not be reflected on the Service, and Protera disclaims any responsibility to revise, update or otherwise ensure the accuracy of any Corporate Information, whether as a result of new information, future events or otherwise.

10. Governing Law, Jurisdiction and Dispute Resolution.

To the extent permitted by applicable law, these Terms & Conditions of Service (T&C), and any disputes or claims arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the State of Illinois, without giving effect to any principles of conflicts of laws. These Terms & Conditions of Service shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of these T&C.

Depending on the country in which you reside, the adopted dispute resolution method and mechanism varies, in accordance to the following:

Countries of North America & Latin America.

Negotiation and/or Mediation. Prior to the initiation of any action or proceeding under these Terms & Conditions of Service to resolve disputes between you and Protera, not including actions in equity for injunctive relief, you and Protera will make a good faith effort to resolve any such disputes by negotiation between our representatives with decision-making power, and, prior to commencing any formal arbitration proceedings, will retain the assistance of a mediator from a professional mediation organization (such as the American Arbitration Association, JAMS/Endispute or the CPR Institute for Dispute Resolution) to facilitate an amicable resolution of the dispute. You agree to cooperate to promptly and diligently participate in those proceedings. Failure of your behalf to reasonably participate in proceedings to resolve disputes, is a breach of these T&C and cause for termination.

Arbitration. Failing resolution pursuant to the previous paragraph, all disputes or controversies arising out of these T&C or any breach hereof will be submitted to the office of the American Arbitration Association in Chicago, Illinois, said arbitration to be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time of the arbitration and the law of the State of Illinois governing such arbitrations. The arbitration will be heard and decided no later than seven (7) months after the notice of arbitration is filed with the American Arbitration Association. The arbitrators will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Discovery as permitted by the Federal Rules of Civil Procedure then in effect will be allowed in connection with arbitration to the extent consistent with the purpose of the arbitration and as allowed by the arbitrators. The decision or award of the arbitrators will set forth the basis for the decision or award, including findings of fact and law, and will be final, non-appealable and binding and may be enforced and executed upon in any court having jurisdiction over you or Protera against whom the enforcement of such decision or award is sought. You and Protera will bear their own arbitration costs and expenses and all other costs and expenses of the arbitration will be divided equally between us.

Countries of Europe, Middle East & Asia.

Negotiation and/or Mediation. You agree that it will be a material breach of these Terms & Conditions of Service to fail to seek to resolve disputes expeditiously, and if you or Protera breach that obligation, the other party will be entitled to terminate these T&C, unless that breach is cured within ten (10) days. Accordingly, prior to the initiation of any action or proceeding under these T&C to resolve disputes between you and Protera, not including actions in equity for injunctive relief, you will make a good faith effort to resolve any such disputes by negotiation between our representatives with decision-making power.

Arbitration. Failing resolution pursuant to the Section above, all disputes or controversies arising out of these Terms and Conditions of Service or any breach hereof shall be finally settled by arbitration under the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce. There shall be three (3) arbitrators: one selected by each party, and a third selected by the first two arbitrators. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English, and all arbitrators will have to be fluent in English so that no translation is required. These Terms and Conditions of Service shall be construed by the arbitrators in accordance with the laws of the State of Illinois without reference to the principles of conflict of laws. The arbitrators will be bound by the warranties, limitations of liability, and other provisions of these T&C. The decision or award of the arbitrators will set forth the basis for the decision or award, including findings of fact and law, and will be final, non-appealable and binding and may be enforced and executed upon in any court having jurisdiction over you or Protera against whom the enforcement of such decision or award is sought. You and Protera will bear their own arbitration costs and expenses and all other costs and expenses of the arbitration will be divided equally between us.

Equitable Relief. Notwithstanding anything contained in these T&C to the contrary, both you and Protera will be entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek such equitable relief in a court of competent jurisdiction.

YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION BY YOU, ON YOUR BEHALF OR FOR YOUR BENEFIT ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SERVICE MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

11. Miscellaneous.

These Terms and Conditions of Service constitute the entire agreement between the you and Protera with respect to the subject matter hereof, and supersedes all other previous written or oral agreements between the parties with respect to such subject matter. All provisions hereof shall survive any termination of these T&C as well as any other revisions which by their terms or sense are intended to survive. If any provision of these Terms and Conditions of Service is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

No waiver by you or Protera of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.

Any heading, caption or section title contained in these T&C is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

As used herein, “include,” “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import.

We reserve the right to require you to sign a non-electronic version of these Terms and Conditions of Service. All other products mentioned in this website are registered trademarks of their respective companies.

12. Digital Millennium Copyright Act (“DMCA”) Notice.

Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, scan content used in connection with the Service for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Service. In addition, we respond to notices of alleged copyright infringement in accordance with the DMCA’s safe harbor provisions. If you believe, in good faith, that any materials on the Service infringe a copyright, you may provide us with written notice that at a minimum contains the following information:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All DMCA notices should be sent to our designated agent as follows:

Protera Technologies, Inc.

1 Westbrook Corporate Center, Suite 560

Westchester, IL 60154

Tel: 877.707.7683

Email: [email protected]

Although it is our policy to terminate content-related relationships with third parties who repeatedly infringe the copyrights of others, Protera shall not be liable to you or any third party under any circumstances for declining to remove or replace any content or material on the Service.

13. Contact

Should you have any questions about this Service, you may contact us at [email protected].

This Agreement was last updated on November 22, 2019.