ADDENDUM “1” TO TRANSCEND ONLINE TERMS OF SERVICE
This Addendum 1 (“Addendum”) is part of, and subject to, the Transcend Online Terms of Service Agreement (“TOS”) between You and ProSolutions Software, Inc. (“PSI,” “We,” or “Our”) and identifies additional terms and conditions applicable to Your use of Our mobile application service (“Paired”). Capitalized terms used but not defined in this Addendum shall have the meaning identified for such terms in the TOS.
This Addendum shall become effective (“Addendum Effective Date”) on the earlier of (a) the date on which You indicate Your acceptance of this Addendum, whether by accepting the TOS or this Addendum separately, or (b) by accessing or using the Paired service, whichever shall occur first.
1. DEFINITIONS
a. “Customer Facing App” is a software application, branded with Your logo and business name, that may be used by individuals to, among other functions, book appointments and purchase products from You utilizing mobile phones and/or any other devices that are designated by PSI as compatible with the application.
b. “Professional App” is a software application, branded with ProSolutions’ logo, that may be used by You and Your employees to check schedules, book appointments and perform other internal business functions as may be added from time to time utilizing mobile phones and/or other devices that are designated by PSI as compatible with the application.
2. CREATION AND DELIVERY
a. After you purchase Our Paired service, We will create and provide You with a Customer Facing App and/or a Professional App to be used in conjunction with Your Transcend Online subscription. Delivery of the App(s) will be made as soon as commercially reasonable after your purchase of the service.
b. You agree to provide PSI with all reasonable assistance required to customize the the Customer Facing App, including, without limitation, prompt delivery of Your trademarks and all other required intellectual property in the format specified by PSI, and prompt evaluation of any pre-production versions of the App(s) provided by PSI for Your review and/or testing.
3 LICENSING
a. Your License. PSI grants You a limited, non-transferable, non-sublicensable non-exclusive license to use the Customer Facing App and Professional App, and to have Your customers use the Customer Facing App (subject to each such customer’s agreement to PSI’s Terms of Use Agreement applicable to the App). This license is granted to You solely in conjunction with Your use of Transcend Online during the Subscription Term.
b. Our License. By purchasing the Paired service and agreeing to this Addendum, You grant PSI a license to use Your trademark(s) and all other intellectual property required to personalize the Apps during the Subscription Term to the extent Your trademarks and other intellectual property will be incorporated into the Apps.
c. Reservation of Rights. The Apps are licensed and not sold, and no ownership interest in the Apps is transferred under this Addendum. Except for the foregoing license, PSI retains all rights in and to the App, including, without limitation, any patents, trademarks, copyrights, trade secrets, and any other proprietary rights included in or associated with the Apps and/or the Apps’ connection to Transcend Online.
4. FEES
a. Setup Fees. You agree to pay a one-time setup fee to PSI at PSI’s current rates (“Setup Fee”). The total amount of the initial Setup Fees payable by You shall be specified in the Sales Order provided to You by PSI, listed on a signup page, or relayed to you by a PSI representative, and shall be payable before delivery of the App(s).
b. Monthly Subscription Fees. During the Subscription Term, You shall pay PSI a separate monthly subscription fee at PSI’s current rates on a per-business location basis. The initial number of locations and the initial total aggregate monthly Subscription Fees for all locations shall be specified in the Sales Order provided to You by PSI applicable to the Paired service, or shall be added to your current subscription in the amount listed on any signup page.
5. SUBSCRIPTION TERM
a. Subscription Term. Your Subscription Term to use the Paired service shall begin on the Addendum Effective Date, and shall continue on a month-to-month basis, until terminated by either party in the manner described below. Either party may terminate the Subscription Term for convenience upon notice to the other party, delivered in accordance with the Transcend Online Terms of Service. Upon termination of the Subscription Term, Your license to use the App(s) shall automatically terminate. You shall not be entitled to any refunds or prorated fees pursuant to your termination of the Subscription Term.
6. WARRANTIES
a. Our Warranties. PSI warrants that during the Subscription Term, the App(s) will function in all material respects in accordance with applicable specifications. As Your sole and exclusive remedy for any material malfunction of the App(s), PSI will use commercially reasonable efforts to correct such malfunction at no additional charge to You. The foregoing warranty applies solely to the App(s) and is in lieu of and entirely supersedes any warranties generally applicable to the Services specified in the Transcend Online Terms of Service.
b. Your Warranties. You represent and warrant that You have all necessary rights to convey to PSI the license applicable to use of Your trademark(s) and other intellectual property set forth above and will only use the App(s) in accordance with the license set forth above. You also represent and warrant that you will use the Paired service in conformity with all regulatory requirements including, but not limited to, the Telephone Consumer Protections Act and any other local, state or federal regulations.
c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES PROVIDED BY EITHER PARTY UNDER THIS ADDENDUM, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGEMENT WITH RESPECT TO THE APPS.
