The following terms and conditions govern the products and/or services to you.
1. PTG offered to provide you with Products by means of a written or electronic document issued by PTG and designated as a “Price”. Unless a different period of time is specified, prices expire thirty days or sooner if PTG notifies you before your acceptance. These Terms and Conditions and the Price accepted by you will collectively constitute the “Contract Documents” (and in the event of any conflict, these Terms and Conditions will prevail) governing the sale or license of Products and/or Services. You will be deemed to have accepted the provisions of the Contract Documents, including these Terms and Conditions, by manifesting your acceptance by any of the following: (a) by acknowledging electronically by clicking that you accept these terms and conditions; (b) sending to PTG a written acknowledgement of the Price(which may be via email); (c) placing a purchase order or giving instructions to PTG with respect to the sale or license of the Products and/or Services described in the Price; or (d) payment for the products. You will be deemed to have received these Terms and Conditions if we have notified you where they can be accessed via the Internet or other reasonable means. If you attempt to accept a Price after it has expired, PTG may accept your offer to be bound by the Price by commencing the provisions of the Products or Services or other reasonable means, but any acceptance by PTG is expressly conditioned upon these Terms and Conditions forming a part of the Contract Documents. These terms and conditions along with the Price shall be the exclusive contractual documents and terms. No term shall be included, excluded or modified except by mutual agreement signed by both the User and PTG.
2. Products. “Products” means Software. Unless expressly set forth, you are responsible for providing adequate Hardware and Software for use of the Products. PTG makes no warranties or representations that the Products are compatible with your hardware or Software.
“Hardware” means computer hardware, related devices and other accessories, including embedded components other than Software.
“Software” means any software, library, utility, tool or other computer or program code in binary form. Software provided by PTG is licensed (and not sold) to you, and subject to the provisions of the license agreement with the owner of such Software. Software licenses based on the number of users may be increased or decreased by you, but will be subject to additional fees, including cancelation fees if you decrease the number. You will be responsible for installing any updates to Software unless you have agreed to pay for a Service from PTG that provides for the installation of updates.
3. Payment. Fees for Products and Services set forth in the Price may not include applicable sales, use, or other similar taxes and you are responsible for paying such taxes. Payment for Products and Services is due no later than 15 days after the date of the Price, or if no Price was issued, payment is due after date of our invoice. For any recurring fees for Products or Services, payment is due in advance on the first day of each calendar month with any partial month prorated based on the actual number of days in such month. You must pay all such recurring amounts via pre-authorized automatic ACH or credit card payments. Fees are not refundable unless PTG agrees otherwise in writing, and any returns may be subject to a reasonable restocking/administrative charge in PTG’s sole discretion. You acknowledge and agree that if you do not timely pay amounts due for recurring fees, PTG or its licensor or lessor (or their respective distributors) may terminate access to licensed Software or leased Hardware without prior notice. In such event, neither PTG, its licensor or lessor, or their respective distributors shall be liable to you for any damages, including any loss of use, loss of business or loss of profits. If not otherwise stated in the Price, all recurring fees are subject to a 2.5% increase annually. PTG may apply such increases at each anniversary of the date of the Price or on the same calendar day each year. Any sums not paid by you when due will bear interest at the rate of 1.5% per month (or such lesser amount as required by applicable law). If PTG has to engage an attorney, collection agency or other third party to collect sums past due, you will also be liable for all such reasonable costs incurred by PTG.
4. Term of Contract Documents; Termination. Unless otherwise described in the Price, and subject to the other provisions of these Terms and Conditions, the Contract Documents shall be in effect for a one-year period commencing on the date of the Price. Thereafter, either party may terminate the Contract Documents upon 30 days written notice to the other party; provided, however, if a Product or Service is subject to a minimum initial or minimum renewal term, your obligation to pay for such Product or Service shall continue until the end of such initial or renewal term. Notwithstanding the foregoing, either party may terminate the Contract Documents if the other party commits a material breach and such breach is not cured within 30 days. In addition, PTG may terminate the Contract Documents immediately if (i) you fail to make any payment when due, (ii) you declare bankruptcy or are adjudicated bankrupt, (iii) a receiver or trustee is appointed for you or substantially all of your assets, or (iv) PTG’s rights to license Software described in the Price Upon termination of the Contract Documents, all rights and obligations under the Contract Documents will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
5. Limited Warranty; Limitation of Liability. PTG will pass through any manufacturer’s or licensor’s warranties to the extent permitted by the licensor. PTG does not provide any warranty, any descriptions in a Price or other material of PTG shall not be construed as a warranty. To the extent PTG is providing Services, PTG warrants that the Services will be performed by qualified personnel and in a manner consistent with good industry standards. EXCEPT AS EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PTG, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, INTEROPERABILITY, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS; (iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES; (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR; OR (v) THAT DATA WILL BE RECOVERABLE OR UNCORRUPTED. The Products and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products or Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). ptg expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
PTG WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT DOCUMENTS OR THE PRODUCTS OR SERVICES. EXCEPT FOR YOUR BREACH OF YOUR PAYMENT OBLIGATIONS, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (i) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (ii) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (iii) LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, SERVICES OR THIRD-PARTY PRODUCTS OR SERVICES NOT BEING AVAILABLE FOR USE; OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
PTG’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT DOCUMENTS (INCLUDING PRODUCTS AND SERVICES) SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PTG DURING THE PRIOR 12 MONTHS OF THE CONTRACT DOCUMENTS FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PTG’S PROVISION OF PRODUCTS TO YOU, ARE A MATERIAL INDUCEMENT FOR PTG TO ENTER INTO THE CONTRACT DOCUMENTS WITH YOU, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
6. Confidential Information. Each party hereto shall hold in confidence and not disclose Confidential Information of the other party, except as required by applicable law.
7. Notices. Any notice under the Contract Documents must be in writing and delivered to the respective addresses of the parties set forth in the Price or to such other address as either party may designate by written notice to the other in accordance with this provision. Notice must be provided in any manner reasonable under the circumstances and shall be deemed to be given on the date received; provided, however, any notice sent by nationally recognized overnight courier service shall be deemed to be received on the date delivery is first attempted.
8. Governing Law; Jurisdiction. The Contract Documents shall be governed by and construed in accordance with the laws of the state of South Carolina without regard to its conflict of laws principles. Each party hereby consents to service of process by, the jurisdiction of, and venue in the courts located in Greenville, South Carolina.
9. Complete Agreement. The Contract Documents contain the entire agreement between the parties hereto with respect to the matters covered herein and in the Price. Any affiliate of yours directly or indirectly receiving Products or Services shall be bound to the Contract Documents unless such affiliate has entered into a separate written agreement with PTG covering such Products or Services. No other agreements, representations, warranties, or other matters, oral or written, purportedly agreed to or represented by or on behalf of PTG by any of its employees or agents, or contained in any sales material or brochures, shall be deemed to bind the parties hereto, except to the extent set forth in the Contract Documents. You may not assign the Contract Documents without the prior written consent of PTG. Subject to the foregoing, this Agreement shall be binding on the permitted successors and assigns of the parties.