1. SERVICES AND SUPPORT

1.1  Subject to the terms of this Agreement, pr.co will use commercially reasonable efforts to provide Client the Services in accordance with the Service Level Terms attached hereto as Exhibit B, and as part of the registration process, will identify an administrative user name and password for Client’s pr.co account.  pr.co reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2  Subject to the terms hereof, pr.co will provide Client with reasonable technical support services in accordance with the terms set forth in Exhibit B.

 

  1. RESTRICTIONS AND RESPONSIBILITIES

2.1  Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by pr.co or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2  Client represents, covenants, and warrants that Client will use the Services only in compliance with pr.co’s standard published Terms of Service then in effect (the “Terms of Service”) and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless pr.co against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services.] Although pr.co has no obligation to monitor Client’s use of the Services, pr.co may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3  Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.

 

  1. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of pr.co includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Client includes non-public data provided by Client to pr.co to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 Client shall own all right, title and interest in and to the Client Data, as well as any data that is based on or derived from the Client Data and provided to Client as part of the Services].  pr.co shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.  

3.3 Notwithstanding anything to the contrary, pr.co shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom, and pr.co will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other pr.co offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.] No rights or licenses are granted except as expressly set forth herein. 

 

  1. PAYMENT OF SERVICE FEES

4.1  Client will pay pr.co the the applicable fees described in the Services Agreement and Implementation Services in accordance with the terms therein (the “Service Fees”).  If Client’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional Service Fees (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay the additional Service Fees in the manner provided herein.  pr.co reserves the right to change the Service Fees or applicable charges and to institute new charges and Service Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that pr.co has billed Client incorrectly, Client must contact pr.co no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to pr.co’s customer support department (hello@pr.co).

4.2  pr.co may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by pr.co thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, plus all expenses of collection and may result in immediate termination of Service. Client shall be responsible for all taxes associated with Services other than taxes of The Netherlands.

4.3 Every year on August 1st, pr.co may increase the total Service Fees in line with with the Consumer Price Index (CPI) as calculated and reported by the Dutch Central Bureau of Statistics (CBS).  

4.4 Should Client prefer to be billed in another currency then the Euro (€), pr.co may increase the total Service Fees in line with changes in currency, as calculated and reported by the European Central Bank (ECB). 

 

  1. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for an additional year (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon sixty (60) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Client will pay in full for the Services up to and including the last day on which the Services are provided. [Upon any termination, pr.co will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter pr.co may, but is not obligated to, delete stored Client Data.] All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

 

  1. WARRANTY AND DISCLAIMER

pr.co shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by pr.co or by third-party providers, or because of other causes beyond pr.co’s reasonable control, but pr.co shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, pr.co does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  Except as expressly set forth in this section, the services and implementation services are provided “as is” and pr.co disclaims all waranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

 

  1. LIABILITY

7.1 For the duration of the Agreement and for a period of six (6) years thereafter, pr.co shall maintain in effect appropriate liability insurance policies (including for product liability and recall, professional liability and third-party liability and a liability for accident and injury to employees) with an internationally reputable insurance company, providing for coverage until EUR 2.000.000,00 per year. At the request of Client, pr.co shall provide appropriate details of the insurance policies, as well as evidence that insurance premiums have been paid timely. pr.co shall immediately inform Client of any event that might affect the insurance cover required pursuant to this clause.

7.2 Client shall not be liable for any damages, losses, or costs caused by it, its employees and/or third parties that it engages in connection with the Agreement unless such damages and/or costs have been caused due to intent or gross negligence on the part of Client, its employees and/or third parties engaged by it. In such event, Client shall only be liable for direct damages and costs sustained. Under “direct damages and costs” is exclusively meant:

  1. property damage;
  2. reasonable costs to prevent or limit the damage which could be expected as a result of the event given rise to the Client’s liability;
  3. reasonable costs for determining the nature and scope of the damage as far as this determination concerns the determination of the damage within the meaning of this article.

7.3 pr.co and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.

 

 

  1. MISCELLANEOUS

8.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sub-licensable by Client except with pr.co’s prior written consent.  pr.co may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing and signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind pr.co in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

8.2 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

8.3 This Agreement shall be governed by the laws of The Netherlands without regard to its conflict of laws provisions. All disputes between Client and pr.co (whether or not such dispute involves a third party) with regard to the Client relationship with pr.co, shall be submitted exclusively to the competent court of law in Amsterdam, the Netherlands, without prejudice to the right of pr.co as plaintiff to initiate proceedings before any other court having jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

8.3 The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Client otherwise agrees to reasonably cooperate with pr.co to serve as a reference account, including the use of Client logos on the pr.co website.