Proggio Customer Agreement

This Proggio Customer Agreement (this “Agreement”) is entered into by and between Project Map Ltd. and its affiliates (“Proggio”) and customers logging into the Proggio app (“Customer”) on the first sign-up date (the “Effective Date”).

  1. Definitions.
    1. “Confidential Information” means all information directly or indirectly disclosed by either party (“Disclosing Party“), its affiliates, business partners or their respective employees, contractors or agents to the other party (“Receiving Party“), including without limitation (a) nonpublic information relating to Disclosing Party’s or its affiliates’ or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that Disclosing Party is obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between the parties and/or their affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to Receiving Party at the time of its disclosure by Disclosing Party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by Receiving Party without reference to the Confidential Information.
    2. “Content” means software (including machine images), data, text, audio, video, images or any other content.
    3. “Documentation” means any technical and operations manuals and specifications for the Service Offerings, as may be amended by Proggio from time to time.
    4. “End Customer” means any individual or entity that directly or indirectly through Customer: (i) accesses or uses Customer Content; or (ii) otherwise accesses or uses the Service Offerings under Customer’s account.
    5. “Order Form” means price quote and additional terms mutually approved by the Parties.
    6. “Proggio Content” means Content Proggio makes available in connection with the Service Offerings, including but not limited to Documentation, code, guides, methodologies and related technology, and any other content.
    7. “Proggio Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Proggiothat Proggio may make available to Customer in connection with this Agreement. 
    8. “Proggio Site” means Porgg.io; Proggio.com; app.proggio.com and any successor or related site designated by Proggio.  
    9. “Service Offerings” means the Proggio Content, the Proggio Marks, the Proggio Site, and any other product or services provided by Proggio under this Agreement. Service Offerings do not include Third Party Content.
    10. “Suggestions” means all suggested improvements and comments to the Service Offerings that Customer provides to Proggio.
    11. “Third Party Content” means Content made available to Customer by any third party on the Service Offerings or in conjunction therewith.
    12. “Customer Content” means Content Customer or any End Customer (i) post, submit, run on, or upload to the Service Offerings, (ii) cause to interface with the Service Offerings, or (iii) upload to the Service Offerings under Customer’s account or otherwise transfer, process, use or store in connection with Customer’s account.
  2. Service Offerings.
    1. Right to Access and Use. Proggio and/or its licensors (if any) own and reserve all right, title, and interest in and to the Service Offerings. During the Term Proggio grants Customer a limited, revocable, non-exclusive, non-sub-licensable, non-transferable right to access and use the Service Offerings solely in accordance with and subject to this Agreement and under the terms set forth in the Order Form. Except as explicitly provided herein, Customer does not obtain any right to the Service Offerings, including any related intellectual property rights.
    2. Restrictions. Neither Customer nor any End Customer may use the Service Offerings in any manner or for any purpose other than as expressly permitted in this Agreement. Neither Customer nor any End Customer shall, or shall attempt to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of the Service Offerings, or any part thereof; (ii) reverse engineer, disassemble, or decompile the Service Offerings, or apply any other process or procedure to derive the source code of any software included in the Service Offerings; or (iii) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas. All rights granted to Customer in this Agreement are conditional on Customer’s continued compliance with this Agreement, and such rights will immediately terminate if Customer does not comply with any of the terms and conditions of this Agreement.
    3. Customer Account. Customer is responsible for all activities that occur under Customer’s account, regardless of whether the activities are undertaken by Customer, Customer’s employees or any third party and Proggio is not responsible for any unauthorized access to Customer’s account. Customer will contact Proggio immediately if Customer believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen.
    4. Support to Customer. Proggio shall provide technical support, on a basis of reasonable effort, all in accordance with the terms set forth in the Proggio SLA and the subscription plan and package, all as may be amended from time to time. 
    5. Planned Downtime. Customer acknowledges that Proggio may occasionally bring down part or all of its system for maintenance purposes. Proggio will make commercially reasonable effort to inform Customer in advance of such planned downtime.
    6. Professional Services. Subject to the terms and conditions of this Agreement, Proggio may provide to Customer the professional services (“Professional Services”) as set forth in one or more Order Forms executed by the parties. Professional Services shall be considered part of the Service Offerings for all purposes under this Agreement. Professional Services may include, without limitation, implementation services, training, consulting and other professional services as agreed between the parties. Customer shall pay Proggio the fees for Professional Services as specified in the applicable Order Form. Unless otherwise specified in the Order Form: (a) Professional Services shall be provided on a time and materials basis; (b) Professional Services will be performed remotely; and (c) Customer shall reimburse Proggio for all reasonable travel and out-of-pocket expenses incurred in connection with the Professional Services. All Professional Services deliverables shall be owned by Proggio and licensed to Customer under the same terms as the Services under this Agreement. Proggio makes no commitment to provide any Professional Services except as expressly set forth in an Order Form executed by both parties.
  3. Customer’s Representations.
    1. By accessing and/or using the Service Offerings, Customer represents and warrants: (i) that Customer is authorized to enter into this Agreement; (ii) that Customer will fully comply with the terms and conditions of the Agreement; (iii) that Customer will only let End Customers access and use the Service Offerings who have provided Customer with written confirmation to comply with the Agreement. Customer must keep records of such written confirmations of End Customer and provide such records to Company upon its first demand. Without derogating from the generality of the foregoing, End Customer must undertake to especially be bound by the Disclaimer (Section ‎10 hereof) and the Limitation of Liability (Section ‎11 hereof); (iv) that Customer Content is fully compliant with any applicable law (including with Customer’s obligations under any applicable privacy and data protection laws and regulations, and the Digital Millennium Copyright Act, if applicable); (v) Customer acknowledges that Proggio is not in any way liable for Customer Content. It shall be clarified that Proggio is under no obligation to monitor any Customer Content; and (vi) Customer is responsible to ensure compatibility of Customer Content with the Service Offerings (e.g. with the then current APIs) and for properly configuring and using the Service Offerings and maintaining appropriate periodic backup of Customer Content.
    2. End Customer Violations. Customer will be deemed to have taken any action of End Customer with respect to End Customer’s access and/or use of the Service Offerings. Customer is responsible for End Customers’ use of Customer Content and the Service Offerings. Customer will ensure that all End Customers comply with Customer’s obligations under this Agreement and that the terms of Customer’s agreement with each End Customer are consistent with this Agreement. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by an End Customer, Customer will immediately terminate such End Customer’s access to Customer’s Content and the Service Offerings.
  4. Payment.
    1. Service Fees. Customer shall pay Proggio the applicable fees for use of the Service Offerings, in accordance with the applicable Order Form, or if no Order Form exists, in accordance with Proggio’s payment terms, as described on the Proggio Site (Proggio.com/pricing). Payment will be made using one of the payment methods Proggio support. All amounts payable under this Agreement will be subject to any deduction or withholding required by law. Any changes to the fees will be mutually agreed upon in writing by the parties hereto.
    2. Taxes. All fees payable by Customer are exclusive of applicable taxes, including VAT and applicable sales tax. Customer will provide Proggio with any information Proggio reasonably requests to determine whether Proggio is obligated to collect VAT from Customer, including Customer’s VAT identification number.
  5. Data Protection and Security. 
    1. Customer represents and warrants that it shall at all times comply and ensure that End User complies with all data protection laws and regulations, and policies of regulatory bodies or agencies, or any regulations implemented pursuant thereto, to the extent applicable.With respect to Personal Information (as such term is defined in the applicable data protection laws and regulations) transferred to Proggio (and only to the extent such Personal Information is transferred to Proggio) (i) Customer shall obtain throughout the Term all necessary rights and consents required under applicable data protection laws and regulations to provide Personal Information to Proggio; (ii) to the extent the basis of the collection of data is consent, Customer shall ensure that a record of such consents is maintained, as required under applicable data protection laws and regulations.
    2. Accessing Customer Data. Proggio will not access or use any of Customer’s data and/or Customer Content in rendering access to the Service Offerings. For technical support purposes only, Proggio does have access to Customer’s data in read-only mode. Any processing of Customer’s personal information will be subject to the terms and conditions of the data processing Agreement entered by and between the parties and Proggio’s privacy policy, available online, as may be amended from time to time.
    3. Application Hosting Platform and Features. In order to provide the Service Offerings, Proggio is using a Premium Enterprise platform, including: High Availability, up to 7 days rollback, Encryption at REST and automatic failover. Other terms and platform options are set according to the subscription plan and package, and the Order Form.
    4. Authentication. Proggio is offering password management, MFA and SSO options for all enterprise plans.
    5. Penetration Tests. Penetration tests are performed annually by third party, and according to OWASP directions.
    6. Confidentiality Agreements. Proggio employees are signed on confidentiality agreements and are going through periodic data protection and security training. Vendors are signed on a confidentiality agreement and are required to present relevant data protection certifications.
  6. Term; Termination.
    1. Term. The term of this Agreement shall be as set forth in the applicable Order Form, or if no Order Form exists, in accordance with the term selected on the Proggio Site (the “Term”), unless terminated in accordance with Section ‎6.2 below.
    2. Termination. 
      1. Termination for Cause. Either party may terminate this Agreement for cause upon 30 days’ prior notice to the other party in case of any material breach of this Agreement by the other party, unless the defaulting party has cured the material breach within 30 days after being notified about such material breach.
      2. Immediate Termination. Without derogating from anything herein, Proggio may terminate this Agreement immediately upon notice to Customer upon the occurrence of one or more of the following (as reasonably determined by Proggio) (i) if Customer’s and/or an End Customer’s use of the Service Offerings poses a security risk to Proggio, the Service Offerings or to any third party, or might otherwise adversely impact the Service Offerings or the systems or Content of any other Proggio customer, and/or may subject Proggio, or any third party to liability; (ii) Customer have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (iii) in case Proggio’s relationship with a third party who provides software or other technology, which Proggio uses in order to provide the Service Offerings expires, is terminated or altered; (iv) if providing the Service Offerings creates a substantial economic or technical burden or material security risk for Proggio; (iv) in order to comply with applicable law and/or requests of governmental entities.
    3. Effect of Termination. Upon any expiration or termination of this Agreement (i) Customer’s rights under this Agreement shall immediately terminate; (ii) Customer shall immediately make any outstanding payments owed to Proggio. It shall be clarified that Customer shall not be entitled to any refund for any annual fees already invoiced; and (iii) Customer will promptly return or, if instructed by Proggio, destroy all Proggio Content in Customer’s possession; and (iv) Sections ‎1, ‎6.3, ‎7, ‎8.1, ‎9-‎11 will survive any expiration or termination of this Agreement.
  7. Proprietary Rights.
    1. Service Offerings. All title, ownership rights, and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Service Offerings shall remain in Proggio, and/or its licensors, if any. Proggio expressly reserves all rights to the foregoing, and except for the limited grant of rights expressly set forth herein, Proggio does not grant Customer any right, title, or interest in any intellectual property owned or licensed by Proggio. To the extent, if any, that ownership of the Service Offerings, or any part thereof, does not automatically vest in Proggio by virtue of the Agreement, or otherwise, Customer hereby transfers and assigns to Proggio, upon the creation thereof, all rights, title and interest Customer may have in and to such Service Offerings (and waives any and all moral rights, as applicable).
    2. Customer Content. Customer represents and warrants that: (i) Customer and/or Customer’s licensors own all right, title, and interest in and to Customer Content; (ii) Customer has all rights in Customer Content necessary to grant the rights contemplated by this Agreement. Except as otherwise provided in this section, Proggio obtains no rights under this Agreement from Customer or Customer’s licensors to Customer Content, including any related intellectual property rights. Notwithstanding the foregoing, Customer grants Proggio a revocable license to use Customer’s logo, trademarks, trade names, or other designations of Customer for marketing purposes only during the Term and thereafter. Customer may revoke such license at any time upon reasonable notice.
    3. Suggestions. If Customer provides any Suggestions to Proggio, Customer hereby assigns to Licensor all right, title, and interest in and to such Suggestions. Proggio may use such Suggestions without any payment or restriction.
  8. Indemnification.
    1. By Customer. Customer will defend, indemnify, and hold harmless Proggio and its licensors, employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (i) breach of this Agreement or violation of applicable law by Customer and/or any End Customer; (ii) Customer Content, including but not limited to any claim involving alleged infringement or misappropriation of third-party rights by Customer Content or by the use, development, design, production, advertising or marketing of Customer Content; or (iv) any dispute between Customer and any End Customer.
    2. By Proggio. Proggio shall indemnify Customer against all liabilities, costs, expenses, damages and losses (including any direct, damages suffered or incurred by Customer arising out of or in connection with any claim made against Customer for actual infringement of a third party’s intellectual property rights arising out of or in connection with use of the Service Offerings. Proggio shall have no obligations or liability hereunder to the extent that the alleged infringement is based on the Customer Content. Without derogating from the foregoing defense and indemnification obligation, if Proggio believes that the Service Offerings, may infringe, then Proggio may in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Service Offerings; (ii) replace or modify the allegedly infringing part of the Service Offerings so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the foregoing clauses (i) and (ii) are not reasonably commercially feasible, terminate this Agreement immediately, and in such event Customer shall receive a prorated refund of any payments already made. This section states Proggio’s entire liability and Customer’s exclusive remedy for any claims of infringement.
    3. Indemnification Conditions. The above defense and indemnification obligations of the indemnifying party under this section are subject to: (i) the indemnified party shall promptly give written notice to the indemnifying party with  respect  to  any claims which may require an indemnification under this Agreement; (ii) the indemnifying party being given immediate and complete control over the defense and/or settlement of the claim (however no compromise or settlement of any claim imposing financial liability upon the indemnified party may be effected without the prior written consent of indemnified party); and (iii) the indemnified party providing cooperation and assistance, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of or response to such claim.
  9. Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE SERVICE OFFERINGS AND/OR ANY THIRD PARTY CONTENT ARE AT CUSTOMER’S OWN RISK. THE SERVICE OFFERINGS AND/OR ANY THIRD PARTY CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROGGIO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, PROGGIO MAKES NO WARRANTY THAT (i) THE SERVICE OFFERINGS AND/OR ANY THIRD PARTY CONTENT WILL MEET CUSTOMER’S EXPECTATIONS; AND (ii) THE SERVICE OFFERINGS AND/OR ANY THIRD PARTY CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. ANY SERVICE OFFERING AND/OR ANY THIRD PARTY CONTENT IS ACCESSED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVES ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE THAT RESULTS FROM THE SERVICE OFFERINGS AND/OR ANY THIRD PARTY CONTENT.
  10. Limitations of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM THE FOREGOING, EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PROGGIO ACTUALLY RECEIVED BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICE OFFERINGS THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
  11. Miscellaneous.
    1. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter of this Agreement and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the parties, whether written or oral, regarding the subject matter of this Agreement. If the terms of this Agreement are in conflict with the terms contained in any other document, the terms of this Agreement will prevail. Notwithstanding the foregoing, in the event of any conflict between this Agreement and the applicable Order Form, the terms of such Order Form shall prevail. In case this Agreement is translated, this English version of this Agreement will prevail over any translation. Any modification to this Agreement shall be subject to a written agreement by the parties.
    2. Confidentiality. The Receiving Party will not disclose Confidential Information of the Disclosing Party during the Term or at any time during five (5) years following the end of the Term.
    3. Publicity. Neither party will issue any press release or make any other public communication with respect to this Agreement or the use of the Service Offerings without the other party’s consent. Neither party will misrepresent and/or express or imply that Proggio supports, sponsors, endorses, or contributes to Customer or Customer’s business endeavors.
    4. Force Majeure. Neither party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, systemic electrical, telecommunications, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, or pandemic outbreaks.
    5. Relationship of the Parties. The parties are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other party or has the authority to represent and/or bind the other party. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
    6. Notice. Any notice or communication required or permitted to be given by either party hereunder, (a) if delivered by hand, shall be deemed to have been received on the date of delivery; (b) if sent by first class mail, shall be deemed to have been received on the third business day following the date of mailing; and (c) if sent by electronic mail or facsimile, be deemed to have been received on the date the sender transmitted the notice or other communication. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
    7. Assignment. Neither party shall assign this Agreement, or delegate or sublicense any of its rights under this Agreement, without the other party’s prior written consent, except that either party may assign this Agreement as a whole to a successor to all or substantially all of its assets or business related to this Agreement, without such consent.
    8. Insurance. Proggio shall, at its own cost and expense, acquire and maintain during the Term professional liability insurance, and, upon Customer’s request, shall provide Customer with a certificate of insurance evidencing such insurance.
    9. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
    10. Governing Law; Venue. This Agreement shall be construed under the laws of the State of Israel, and any dispute or claim with respect thereto shall be submitted to the exclusive jurisdiction of the competent courts in Tel-Aviv, Israel. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

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