Our Customer Terms of Service
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY
Version: October 31, 2019
This is a contract between you (the Customer) and us (proposal.win a service of Best Solution Company, dba: PricingWire). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our services to you unless you agree to them. By using the Advanced Proposal Optimization Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms. If you have an active Best Solution Company, dba: PricingWire proposal.win service in-progress, we will let you know when we do via an email. You can request archived versions of the terms by simply emailing us via the link in the footer of our website and using the following as your subject line: "Request Archived Versions of Terms of Service".
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
A. DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
B. GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Service and Consulting Services are provided. For example, you can find information on access and acceptable use. These terms apply to all of our service offerings.
C. SERVICE DISCLOSURES. We offer several different products and there are some important things to know before you use them. We’ve collected these important things to know and you can find them here.
D. GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected the many of the remaining legal terms that make up our Customer Terms of Service.
E. JURISDICTION SPECIFIC TERMS. With customers across the globe, this final section is where we address most of the differences in these terms that vary based on customer location.
A. DEFINITIONS
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Service or Consulting Services" means the professional services provided to you by us, which may include training services, recommendations, rationale, action plans, integration or other consulting services.
"Customer Data" means all information that you provide to us as inputs.
"Best Solution Company, dba: PricingWire proposal.win Content" means all information, data, text, files, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Service or Consulting Services.
"Order" or "Order Form" means the Best Solution Company, dba: PricingWire proposal.win-approved form or online process by which you agree to purchase any Service and purchase any Consulting Services. Most Orders are completed through our online payment process. The Order may be referred to as a "Scope of Work" if you are purchasing only Consulting Services.
“Pricing Page” means http://proposal.win/getstarted
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Service.
"Third-Party Sites" means third-party websites reviewed for informational research that may or may not be used to deliver the Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who you have made aware and authorized to use the Service for your benefit.
"Best Solution Company, dba: PricingWire proposal.win", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online order process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Availability. We try to make the Service available 24 hours a day, 7 days a week, except for common holidays recognized by banks in the United States of America and planned down-time for maintenance.
2. Consulting Services. You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide will be delivered in English. Fees for these Consulting Services are in addition to your Service investment or fee.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within ten (10) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and twenty (120) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
3. Fees and Payments
a. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
b. Payment against invoice. All amounts invoiced are due and payable within ten (10) days from the date of the invoice, unless otherwise specified in the Order Form or on invoice.
c. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance.
d. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to the performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
4. Use and Limitations of Use
a. Acceptable Use. Your use of the Service, recommendations, rationale, action plan and the form or method they are delivered will comply with any and all local, state, federal, territory and country laws and regulations.
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Service; (iii) attempt to gain unauthorized access to the Service; (iv) access the Service through our interface; or (v) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Service if you are legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service. The Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Service where your communications would be subject to such laws. You agree not to use data from the Service in legal proceedings or otherwise as evidence.
You will notify us right away of any unauthorized use of your account by emailing us at the email link in the footer of our website.
c. No Sensitive Information. YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
d. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
7. Service Term, Termination, Suspension
a. Term. Your initial service period will be specified in your Order.
b. No Early Termination; No Refunds. The Service Term will end on the expiration date and the service cannot be cancelled early. We do not provide refunds if you decide to stop using the Best Solution Company, dba: PricingWire proposal.win service during your Service Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (i) upon two (2) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on two (2) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Service Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Services without notice for: (i) use of the Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Services two (2) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.
f. Suspension for Present Harm. If your use of the Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Upon termination or expiration of this Agreement, you will stop all use of the affected Service and Best Solution Company, dba: PricingWire proposal.win Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable service as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the applicable Term. Fees are otherwise non-refundable.
C. SERVICE DISCLOSURES
1. Customer Responsibilities. To realize the full value of the Service and Consulting Services, your prioritized intentional participation and focused effort and follow through are needed.
2. The Service. Advanced Proposal Optimization (APO) provides Monetization Strategy recommendations that consist of four (4) parts:
a. Your Offerings - is recommendations on how you could assort or package or tier or version or module the capabilities (e.g., products, services, solutions, functionality, features, benefits, outcomes) you could or can offer your customers.
b. Your Pricing - is recommendations on how you could price your offerings and may or may not include additional recommendations on how you could provide discounts to recommended prices.
c. Your Messaging - is recommendations on how you could prioritize messaging and communications to best convey, demonstrate and communicate the value of your offerings and any perceived and or real advantages or strengths. These recommendations are paramount and critical to the timing, scope and sustainability of the performance of both the Offering recommendations and Pricing recommendations.
d. Proposal Experience - consists of three (3) stages; [Stage 1: everything that happens prior to submitting a proposal], [Stage 2: the proposal design, content and delivery], and [Stage 3: everything that happens after the proposal is submitted].
3. The Methodology. Our methodology to provide the Service consists of three (3) stages or phases as follows:
a. INPUTS: You submit your inputs in the format we provide and require for processing.
b. ANALYSIS: We then use both automated and manual means to review, analyze and interpret your inputs.
c. OUTPUTS: Recommendations are provided in a presentation format which may consist of only or a combination of PDF or Word or Docs file, PowerPoint or Slides file or Excel or Sheets file and delivered electronically via email and at our discretion that email may include a secure link to visit and download the file or files (any links provided for you to download the recommendation file or files, will be active and available for no more than five (5) business days).
4. Alpha/Beta Services. If we make alpha or beta access to some portion or all of the Service (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
D. GENERAL LEGAL TERMS
1. Customer Data
a. Limits on Best Solution Company, dba: PricingWire proposal.win. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at http://proposal.win. We will not use any Contact Information for our own marketing purposes.
b. Aggregate Data. We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
2. Best Solution Company, dba: PricingWire proposal.win’s Proprietary Rights. This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Best Solution Company, dba: PricingWire proposal.win Content, the Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks may not be used without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Service (unless, of course, you have a source other than the Service for such Enrichment Data.) The Enrichment Data we may or may not provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service or Consulting Services, without payment or attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Service and Consulting Services to you and as permitted by this Agreement. If you are using the Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your name and company logo to our customer list and website.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, BEST SOLUTION COMPANY, DBA: PROPOSAL.WIN CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE, BEST SOLUTION COMPANY, DBA: PRICINGWIRE PROPOSAL.WIN CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE A FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF ANY FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE ANY SERVICE TO YOU.
8. Miscellaneous
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Service (but, your fees and charges won’t change during the Service Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at http://proposal.win. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within two (2) business days after receiving notice of modification. If you give us this notice, your service will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. For any future service purchased, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than six (6) months after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Service or Consulting Services to prohibited countries or individuals or permit use of the Service or Consulting Services by prohibited countries or individuals.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Best Solution Company, dba: PricingWire, c/o proposal.win, PO Box 252, Mountlake Terrace, WA 98043-5639, U.S.A., Attention: General Counsel.
To you: your address as provided in our Best Solution Company, dba: PricingWire proposal.win account information for you. We may give electronic notices by email to your e-mail address(es) on record in our account information. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must provide updates to your account information to keep it current.
h. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy, is the entire agreement between us for the Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘Crowdsourced Data’, ‘Alpha/Beta Services’, ‘Best Solution Company, dba: PricingWire proposal.win’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
n. Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
E. JURISDICTION SPECIFIC TERMS
1. Contracting Entity and Applicable Law.
Your physical address determines which Best Solution Company, dba: PricingWire proposal.win entity you are contracting with for the Service and Consulting Services. For this Agreement, “located in” means your shipping or physical address.
You are contracting with Best Solution Company, dba: PricingWire proposal.win, and this Agreement is governed by the laws of State of Washington, U.S.A. without reference to conflicts of law principles. For contracts with Best Solution Company, dba: PricingWire proposal.win, both parties consent to the exclusive jurisdiction and venue of the courts in the State of Washington, U.S.A. for all disputes arising out of or relating to the use of the Service or the Consulting Services.
2. EU/EEA Data Processing.
Best Solution Company, dba: PricingWire proposal.win acknowledges the EU-U.S. Privacy Shield Framework and U.S.-Swiss Safe Harbor Framework. We do not use, store, accept or request any Sensitive Personal Data, Personal Data or Personal Information as an input or consideration to provide our Service or Consulting Services. You acknowledge in all cases that Best Solution Company, dba: PricingWire proposal.win acts as the processor of Customer Data (that does not contain any Sensitive Personal Data, Personal Data or Personal Information) and you remain the controller of Customer Data for applicable European Union data protection regulations. If you are located in the European Union, you understand that if you give an integration provider access to your Best Solution Company, dba: PricingWire proposal.win recommendations, rationale or action plan information, you serve as the controller of such information and the integration provider serves as the processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our subprocessors.
a. Defects. If the Service is determined to have a defect, you will notify us in writing. We will remedy material defects in a reasonable period of time. If we cannot, then we will refund to you the pro-rata amount of fees actually paid applicable to the unremedied material defect. You cannot deduct this amount from your Service Fee, unless your claim is undisputed or has been confirmed by a final court judgment. You will not have a claim for a defect under this section if: (i) it is caused by your use of the Service in violation of this Agreement, or (ii) is a defect relating to any Free Services that has not been maliciously concealed by us. Subject to the limitation of liability set forth in this Agreement, the refund described in this section is your sole and exclusive remedy for defect claims.
b. Termination for Cause. The ‘Termination for Cause’ section set forth above is replaced in its entirety with the following:
“Either party may terminate this Agreement for cause, as to any or all Services upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Service Term. The right of either party to terminate this Agreement for a compelling reason under a claim of extraordinary termination under any Legal Civil Code shall remain unaffected.”
c. Disclaimers; Limitations of Liability. The ‘Disclaimers; Limitations of Liability’ set forth above is replaced in its entirety with the following:
"a. Disclaimer of Warranties. OUR SERVICES WILL BE PROVIDED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH CUSTOMARY INDUSTRY STANDARDS UTILIZING REASONABLE CARE AND SKILL. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, BEST SOLUTION COMPANY, DBA: PRICINGWIRE PROPOSAL.WIN CONTENT, OR THE CONSULTING SERVICES FOR A PARTICULAR PURPOSE NOR ON A SPECIFIC RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, BEST SOLUTION COMPANY, DBA: PRICINGWIRE PROPOSAL.WIN CONTENT, OR THE CONSULTING SERVICES, EXCEPT IF AGREED SEPARATELY.
ANY LIABILITY FOR DEFECTS EXISTING UPON CONCLUSION OF THESE TERMS ACCORDING TO SECTION 536a GERMAN CIVIL CODE SHALL BE EXCLUDED.
APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES.
ANY OF OUR FREE SERVICES, INCLUDING APIs, ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. Full Liability. We will be liable to you without limit for loss or damage you actually suffer that is caused by: (i) our fraudulent action, (ii) our willful action, (iii) our gross negligence, (iv) our damage to life, body or health, or (v) our action that would give rise and is applicable to a claim under the German Product Liability Act and/or (vi) from a guarantee of characteristics (“zugesicherte Eigenschaft”). Provided however, the limitations otherwise set forth below shall apply to: (w) our Free Services, (x) those losses or damages caused by our slight negligence, (y) those losses or damages caused by gross negligence of employees who are not legal representatives or senior employees, and (z) our strict liability that may arise from material defects in the Service that were already in existence at the commencement of your service. The claims for which we will be liable to you without limit in accordance with this section are collectively referred to as “Full Liability Claims”.
c. No Indirect Damages. EXCEPT FOR FULL LIABILITY CLAIMS, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
d. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, AND OUR LIABILITY FOR FULL LIABILITY CLAIMS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE ANY FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
e. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
f. EXCEPT FOR FULL LIABILITY CLAIMS, THE PERIOD OF LIMITATION FOR ANY WARRANTY AND LIABILITY CLAIMS SHALL BE SIX (6) MONTHS."
Version: October 31, 2019
This is a contract between you (the Customer) and us (proposal.win a service of Best Solution Company, dba: PricingWire). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our services to you unless you agree to them. By using the Advanced Proposal Optimization Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms. If you have an active Best Solution Company, dba: PricingWire proposal.win service in-progress, we will let you know when we do via an email. You can request archived versions of the terms by simply emailing us via the link in the footer of our website and using the following as your subject line: "Request Archived Versions of Terms of Service".
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
A. DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
B. GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Service and Consulting Services are provided. For example, you can find information on access and acceptable use. These terms apply to all of our service offerings.
C. SERVICE DISCLOSURES. We offer several different products and there are some important things to know before you use them. We’ve collected these important things to know and you can find them here.
D. GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected the many of the remaining legal terms that make up our Customer Terms of Service.
E. JURISDICTION SPECIFIC TERMS. With customers across the globe, this final section is where we address most of the differences in these terms that vary based on customer location.
A. DEFINITIONS
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Service or Consulting Services" means the professional services provided to you by us, which may include training services, recommendations, rationale, action plans, integration or other consulting services.
"Customer Data" means all information that you provide to us as inputs.
"Best Solution Company, dba: PricingWire proposal.win Content" means all information, data, text, files, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Service or Consulting Services.
"Order" or "Order Form" means the Best Solution Company, dba: PricingWire proposal.win-approved form or online process by which you agree to purchase any Service and purchase any Consulting Services. Most Orders are completed through our online payment process. The Order may be referred to as a "Scope of Work" if you are purchasing only Consulting Services.
“Pricing Page” means http://proposal.win/getstarted
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Service.
"Third-Party Sites" means third-party websites reviewed for informational research that may or may not be used to deliver the Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who you have made aware and authorized to use the Service for your benefit.
"Best Solution Company, dba: PricingWire proposal.win", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online order process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Availability. We try to make the Service available 24 hours a day, 7 days a week, except for common holidays recognized by banks in the United States of America and planned down-time for maintenance.
2. Consulting Services. You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide will be delivered in English. Fees for these Consulting Services are in addition to your Service investment or fee.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within ten (10) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and twenty (120) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
3. Fees and Payments
a. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
b. Payment against invoice. All amounts invoiced are due and payable within ten (10) days from the date of the invoice, unless otherwise specified in the Order Form or on invoice.
c. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance.
d. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to the performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
4. Use and Limitations of Use
a. Acceptable Use. Your use of the Service, recommendations, rationale, action plan and the form or method they are delivered will comply with any and all local, state, federal, territory and country laws and regulations.
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Service; (iii) attempt to gain unauthorized access to the Service; (iv) access the Service through our interface; or (v) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Service if you are legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service. The Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Service where your communications would be subject to such laws. You agree not to use data from the Service in legal proceedings or otherwise as evidence.
You will notify us right away of any unauthorized use of your account by emailing us at the email link in the footer of our website.
c. No Sensitive Information. YOU AGREE NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
d. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
7. Service Term, Termination, Suspension
a. Term. Your initial service period will be specified in your Order.
b. No Early Termination; No Refunds. The Service Term will end on the expiration date and the service cannot be cancelled early. We do not provide refunds if you decide to stop using the Best Solution Company, dba: PricingWire proposal.win service during your Service Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (i) upon two (2) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on two (2) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Service Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Services without notice for: (i) use of the Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Services two (2) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.
f. Suspension for Present Harm. If your use of the Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Upon termination or expiration of this Agreement, you will stop all use of the affected Service and Best Solution Company, dba: PricingWire proposal.win Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable service as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the applicable Term. Fees are otherwise non-refundable.
C. SERVICE DISCLOSURES
1. Customer Responsibilities. To realize the full value of the Service and Consulting Services, your prioritized intentional participation and focused effort and follow through are needed.
2. The Service. Advanced Proposal Optimization (APO) provides Monetization Strategy recommendations that consist of four (4) parts:
a. Your Offerings - is recommendations on how you could assort or package or tier or version or module the capabilities (e.g., products, services, solutions, functionality, features, benefits, outcomes) you could or can offer your customers.
b. Your Pricing - is recommendations on how you could price your offerings and may or may not include additional recommendations on how you could provide discounts to recommended prices.
c. Your Messaging - is recommendations on how you could prioritize messaging and communications to best convey, demonstrate and communicate the value of your offerings and any perceived and or real advantages or strengths. These recommendations are paramount and critical to the timing, scope and sustainability of the performance of both the Offering recommendations and Pricing recommendations.
d. Proposal Experience - consists of three (3) stages; [Stage 1: everything that happens prior to submitting a proposal], [Stage 2: the proposal design, content and delivery], and [Stage 3: everything that happens after the proposal is submitted].
3. The Methodology. Our methodology to provide the Service consists of three (3) stages or phases as follows:
a. INPUTS: You submit your inputs in the format we provide and require for processing.
b. ANALYSIS: We then use both automated and manual means to review, analyze and interpret your inputs.
c. OUTPUTS: Recommendations are provided in a presentation format which may consist of only or a combination of PDF or Word or Docs file, PowerPoint or Slides file or Excel or Sheets file and delivered electronically via email and at our discretion that email may include a secure link to visit and download the file or files (any links provided for you to download the recommendation file or files, will be active and available for no more than five (5) business days).
4. Alpha/Beta Services. If we make alpha or beta access to some portion or all of the Service (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
D. GENERAL LEGAL TERMS
1. Customer Data
a. Limits on Best Solution Company, dba: PricingWire proposal.win. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at http://proposal.win. We will not use any Contact Information for our own marketing purposes.
b. Aggregate Data. We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
2. Best Solution Company, dba: PricingWire proposal.win’s Proprietary Rights. This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Best Solution Company, dba: PricingWire proposal.win Content, the Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks may not be used without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Service (unless, of course, you have a source other than the Service for such Enrichment Data.) The Enrichment Data we may or may not provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service or Consulting Services, without payment or attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Service and Consulting Services to you and as permitted by this Agreement. If you are using the Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your name and company logo to our customer list and website.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, BEST SOLUTION COMPANY, DBA: PROPOSAL.WIN CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE, BEST SOLUTION COMPANY, DBA: PRICINGWIRE PROPOSAL.WIN CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE A FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF ANY FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE ANY SERVICE TO YOU.
8. Miscellaneous
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Service (but, your fees and charges won’t change during the Service Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at http://proposal.win. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within two (2) business days after receiving notice of modification. If you give us this notice, your service will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. For any future service purchased, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than six (6) months after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Service or Consulting Services to prohibited countries or individuals or permit use of the Service or Consulting Services by prohibited countries or individuals.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Best Solution Company, dba: PricingWire, c/o proposal.win, PO Box 252, Mountlake Terrace, WA 98043-5639, U.S.A., Attention: General Counsel.
To you: your address as provided in our Best Solution Company, dba: PricingWire proposal.win account information for you. We may give electronic notices by email to your e-mail address(es) on record in our account information. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must provide updates to your account information to keep it current.
h. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy, is the entire agreement between us for the Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘Crowdsourced Data’, ‘Alpha/Beta Services’, ‘Best Solution Company, dba: PricingWire proposal.win’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
n. Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
E. JURISDICTION SPECIFIC TERMS
1. Contracting Entity and Applicable Law.
Your physical address determines which Best Solution Company, dba: PricingWire proposal.win entity you are contracting with for the Service and Consulting Services. For this Agreement, “located in” means your shipping or physical address.
You are contracting with Best Solution Company, dba: PricingWire proposal.win, and this Agreement is governed by the laws of State of Washington, U.S.A. without reference to conflicts of law principles. For contracts with Best Solution Company, dba: PricingWire proposal.win, both parties consent to the exclusive jurisdiction and venue of the courts in the State of Washington, U.S.A. for all disputes arising out of or relating to the use of the Service or the Consulting Services.
2. EU/EEA Data Processing.
Best Solution Company, dba: PricingWire proposal.win acknowledges the EU-U.S. Privacy Shield Framework and U.S.-Swiss Safe Harbor Framework. We do not use, store, accept or request any Sensitive Personal Data, Personal Data or Personal Information as an input or consideration to provide our Service or Consulting Services. You acknowledge in all cases that Best Solution Company, dba: PricingWire proposal.win acts as the processor of Customer Data (that does not contain any Sensitive Personal Data, Personal Data or Personal Information) and you remain the controller of Customer Data for applicable European Union data protection regulations. If you are located in the European Union, you understand that if you give an integration provider access to your Best Solution Company, dba: PricingWire proposal.win recommendations, rationale or action plan information, you serve as the controller of such information and the integration provider serves as the processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our subprocessors.
a. Defects. If the Service is determined to have a defect, you will notify us in writing. We will remedy material defects in a reasonable period of time. If we cannot, then we will refund to you the pro-rata amount of fees actually paid applicable to the unremedied material defect. You cannot deduct this amount from your Service Fee, unless your claim is undisputed or has been confirmed by a final court judgment. You will not have a claim for a defect under this section if: (i) it is caused by your use of the Service in violation of this Agreement, or (ii) is a defect relating to any Free Services that has not been maliciously concealed by us. Subject to the limitation of liability set forth in this Agreement, the refund described in this section is your sole and exclusive remedy for defect claims.
b. Termination for Cause. The ‘Termination for Cause’ section set forth above is replaced in its entirety with the following:
“Either party may terminate this Agreement for cause, as to any or all Services upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Service Term. The right of either party to terminate this Agreement for a compelling reason under a claim of extraordinary termination under any Legal Civil Code shall remain unaffected.”
c. Disclaimers; Limitations of Liability. The ‘Disclaimers; Limitations of Liability’ set forth above is replaced in its entirety with the following:
"a. Disclaimer of Warranties. OUR SERVICES WILL BE PROVIDED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH CUSTOMARY INDUSTRY STANDARDS UTILIZING REASONABLE CARE AND SKILL. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, BEST SOLUTION COMPANY, DBA: PRICINGWIRE PROPOSAL.WIN CONTENT, OR THE CONSULTING SERVICES FOR A PARTICULAR PURPOSE NOR ON A SPECIFIC RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, BEST SOLUTION COMPANY, DBA: PRICINGWIRE PROPOSAL.WIN CONTENT, OR THE CONSULTING SERVICES, EXCEPT IF AGREED SEPARATELY.
ANY LIABILITY FOR DEFECTS EXISTING UPON CONCLUSION OF THESE TERMS ACCORDING TO SECTION 536a GERMAN CIVIL CODE SHALL BE EXCLUDED.
APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES.
ANY OF OUR FREE SERVICES, INCLUDING APIs, ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. Full Liability. We will be liable to you without limit for loss or damage you actually suffer that is caused by: (i) our fraudulent action, (ii) our willful action, (iii) our gross negligence, (iv) our damage to life, body or health, or (v) our action that would give rise and is applicable to a claim under the German Product Liability Act and/or (vi) from a guarantee of characteristics (“zugesicherte Eigenschaft”). Provided however, the limitations otherwise set forth below shall apply to: (w) our Free Services, (x) those losses or damages caused by our slight negligence, (y) those losses or damages caused by gross negligence of employees who are not legal representatives or senior employees, and (z) our strict liability that may arise from material defects in the Service that were already in existence at the commencement of your service. The claims for which we will be liable to you without limit in accordance with this section are collectively referred to as “Full Liability Claims”.
c. No Indirect Damages. EXCEPT FOR FULL LIABILITY CLAIMS, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
d. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, AND OUR LIABILITY FOR FULL LIABILITY CLAIMS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE ANY FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
e. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
f. EXCEPT FOR FULL LIABILITY CLAIMS, THE PERIOD OF LIMITATION FOR ANY WARRANTY AND LIABILITY CLAIMS SHALL BE SIX (6) MONTHS."