Platform Terms & Conditions

Last Updated 22 April 2024

IMPORTANT NOTICE: PLEASE READ CAREFULLY.

THESE PLATFORM TERMS AND CONDITIONS (“PLATFORM TERMS”) IS A LEGAL AGREEMENT BETWEEN PROBAX USA, INC. (“PROBAX”) AND THE COMPANY OR OTHER ENTITY THAT ACCEPTS THESE PLATFORM TERMS BY ACCESSING OR USING THE PRODUCTS (AS DEFINED BELOW) (“SERVICE PROVIDER”). IF THE SERVICE PROVIDER DOES NOT AGREE TO THESE PLATFORM TERMS, THE SERVICE PROVIDER MUST NOT ACCESS OR USE THE PRODUCTS.

IN THE EVENT OF AN INCONSISTENCY BETWEEN THESE PLATFORM TERMS AND A PRIOR WRITTEN AGREEMENT BETWEEN PROBAX AND THE SERVICE PROVIDER, THESE PLATFORM TERMS WILL APPLY.

Introduction

1. Probax has entered into a contract with a company (“Distributor”) that is authorized to distribute certain Probax’ software as a service (“SaaS”) products.
2. The Service Provider wishes to license from Probax certain SaaS products as detailed in a purchase order form, online order form, or other ordering document entered into between the Service Provider and the Distributor that references these Platform Terms or pursuant to which the Service Provider is otherwise informed that these Platform Terms apply (“Order”).
3. The SaaS products licensed to the Service Provider may be accessed by the Service Provider through Probax’s management console (“Platform”).
4. In these Platform Terms, the term “Product” means (1) the SaaS products licensed to the Service Provider as set out in the Order and accessed via the Platform; (2) the Platform; and (3) all related documentation including user manuals, help files, technical manuals, and any other materials provided by or on behalf of Probax that accompany the applicable Product, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the applicable Product.
5. Probax currently offers the following SaaS products: Probax MSP Backup and Probax MSP Backup (Standalone) through the Platform.
6. The Service Provider may use the Platform to manage the use of the Products (other than the Platform) by individuals and entities who use one or more of the Products for their own purposes ("End Users").
7. In these Platform Terms, the term "Subsequent Service Provider" means a company or other entity other than a Service Provider that uses the Platform, pursuant to a contract with an entity other than Probax, to: (1) manage use of the Products by other companies or entities; and (2) manage End Users’ use of the Products (other than the Platform).
8. The Platform also allows the Service Provider to resell the Products to Resellers. In these Platform Terms, the term "Resellers" means: (1) Subsequent Service Providers; and (2) companies or entities who merely offer the Products for resale to other companies or entities, whether those entities be Subsequent Service Providers or those who simply purchase for subsequent resale.
9. These Platform Terms set out the terms and conditions upon which Probax is willing to license the Products to the Service Provider.
10. These Platform Terms refer to each of the Service Provider and Probax individually as a “Party” and jointly refers to them as the “Parties”.

It is agreed

1.  Scope of License grant

• Grant of License. Subject to these Platform Terms, Probax hereby grants to the Service Provider a non-exclusive and non-transferable license to use the Products directly, to resell the Products, and to provide related services, to its Resellers and to End Users within the Territory (defined in Section 2 below). Subject to Section 1.8, the Service Provider may sublicense the rights granted in this license only to its Resellers in connection with the sale of the Products and only as specifically provided in these Platform Terms.
• Territory. The Service Provider must also comply with the additional restrictions in Section 14 and the following:
  
  1. The Products are not authorized for use by any End User in any country embargoed by any Sanctions Authority (as defined in Section 14.2(1) below) or by any End User to whom export is restricted or prohibited by any Sanctions Authority.
  2. Probax cannot predict when, if, or the extent to which, the Service Provider’s ability to do business in the Territory might be embargoed, prohibited, or restricted by any Sanctions Authority and the Service Provider acknowledges and agrees that it undertakes the pursuit of business in the Territory at its own risk.
• Platform Terms. The Service Provider acknowledges that its use of the Products, including the Platform, is subject to their agreement to comply with these Platform Terms.
• Updating Platform Terms. The Service Provider acknowledges that:
  1. Probax may amend these Platform Terms from time to time, at its discretion, with the current version of these Platform Terms available at www.probax.io/platform-terms;
  2. the version of these Platform Terms which apply to any Service Provider at any particular time is the then current version of the Platform Terms available at www.probax.io/platform-terms; and
  3. and any reference herein to “these Platform Terms” means “the then current version of the Platform Terms available at www.probax.io/platform-terms”.
• Additional Terms. The Service Provider acknowledges that its use, and any Reseller’s use, of use of the Products is subject to all additional terms, policies, rules, or guidelines applicable to the Products or certain features of the Products that Probax may post on or link to from the Products (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Platform Terms.
• Third party products. Where the Products use, integrate or work with products provided by third parties (“Third Party Products”) the Service Provider acknowledges that its use, and any Reseller’s use, of use of these Third Party Products is subject to additional terms and policies set by the third party providers, including privacy policies and how User Data (as defined in Section 1 below) and other data or information available to them will be used. By using the Third Party Products, the Service Provider agrees to be bound by these additional terms and policies set by the third party providers.
• Term. The term of the agreement established by these Platform Terms commences when the Service Provider first:
  1. clicks "I AGREE" during during the registration or order placement procedure; or
  2. accesses or otherwise uses the Products, and continues until the earlier of the agreement being terminated under Section 12 or expiry of the term set out in the Order (“Term”).
• Resellers. The Service Provider must ensure that any Reseller to which the Service Provider sells or resells Products:
  1. is provided with a copy of these Platform Terms and the EULA as defined in Section End Users below; and
  2. accepts these Platform Terms.
• End Users. The Service Provider must ensure all End Users comply with the following:
  1. End User License Agreement. All End Users of Products must agree to the then current Probax end user license agreement (“EULA”) before such End Users are permitted to begin using the Products. The current version of the Probax EULA is available at www.probax.io/eula.
  2. Login credentials. Each End User is authorized and provided with an administrator account during the account provisioning process, solely to use the login credentials issued by Probax for the designated Product. End Users may independently update their own login credentials or, where applicable, extend additional administrative access to other authorized users. Under no circumstances should login credentials be shared with unauthorized individuals or entities.

• Copies. The Service Provider is permitted to make copies of the Products solely for the Service Provider’s own use of the Products in accordance with Section 1. In accordance with Section 8, Probax and its affiliates including Probax Pty Ltd (“Probax Affiliate”) retain all intellectual property rights in any copies or partial copies of the Products made by the Service Provider and the Service Provider must incorporate all relevant patent, copyright and trademark notices in such copies or partial copies.
• No Reverse Engineering. The Service Provider must not reverse engineer, reverse assemble, decipher, decompile, disassemble, adapt, modify or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how, tags, specifications, architectures, structures or other elements of, or other information from, any portion of any Product (collectively, “Reverse Engineering”), or permit or induce the foregoing by others, in whole or in part. However, if directly applicable law prohibits enforcement of the foregoing, the Service Provider may engage, and may permit its Resellers or End Users to engage, in Reverse Engineering to the limited extent permitted by such directly applicable law, but only if: (1) Reverse Engineering is strictly necessary to obtain such information; and (2) the Service Provider has first requested such information from Probax and Probax has failed to make such information available (for a fee or otherwise) under reasonable terms and conditions.
• Restrictions on Information Obtained. Any information supplied to the Service Provider or that the Service Provider obtains under Section 2: (1) is Probax’s Confidential Information (as defined in Section 11 below); (2) is subject to the obligations set out in Section 10; (3) may only be used by the Service Provider, and any applicable Reseller or End User, for the purpose described in Section 2; and (4) must not otherwise be disclosed to any third party or used to create any software which is substantially similar to the expression of any of the Products. With respect to the Products and Confidential Information of Probax, the Service Provider must not circumvent any software, copyright, management or security features, fail to display any copyright or other proprietary notices, or develop software or services that compete with Probax using information obtained through Reverse Engineering and must not permit others to do so.
• Derivative Works. Subject to Section 2, the Service Provider must not: (1) reproduce, modify, adapt, alter, translate, write, develop or create derivative works of any Product in any manner; (2) use the Products for competitive analysis or to build competitive products including the development or design of any computer hardware or software program including, but not limited to, a program that provides or is intended to provide or include a similar feature or functionality as the Products, or any conversion utility or aid relating to the Products intended to enable or facilitate a user’s conversion from the use of the Products to an alternative program; (3) interfere with or otherwise circumvent mechanisms in the Products intended to limit their use; and (4) must not assist or permit others to do any of the above.
• Service Provider’s Operations. The Service Provider operates at its own expense and risk under the Service Provider’s own name. The Service Provider must not act or communicate in any manner that may imply that the Service Provider has the right to represent or act on behalf of Probax, as agent or otherwise. The Platform provides the Service Provider with the technical capability to suspend service and/or restrict access to the Products by Resellers and End Users. The Service Provider’s use of this capability is entirely at its own risk. Probax will not be liable in any way for any claims arising from the Service Provider’s suspending or restricting such access.

• Orders. The Service Provider must submit an Order for at least one Product to the Distributor that is accepted by the Distributor to obtain a license to use the Platform and the ordered Products in accordance with Section 1.1. The Service Provider may obtain a license to additional Products with additional Orders or amendments to existing Orders, as determined by the Distributor and pursuant to Section 1.1.
• Log-in Credentials. The Service Provider and its Resellers must only use the log-in credentials for the Platform that Probax provides to them.
• Pricing. The Order will specify the pricing and payment terms for the Products.

• Service Levels. Probax’s support policy, inclusive of service levels is available at www.probax.io/support-policy.

• Service and Product Faults. Our aim is to provide a fault free Service and Products however we cannot guarantee this.
• Maintenance and Unplanned Disruption. Probax will endeavor to conduct all schedule maintenance outside of business hours. However, we may be required to suspend supply of our Services and/or Products during business hours in order to carry out emergency repairs. Access to the Products and User Data may also be impacted by unplanned disruption.  
• Redundancy. We have employed enhanced methods of redundancy and fail safety in our data centre infrastructure and our software however we cannot guarantee protection against data loss or data corruption.
• Support Provided. During the Term, Probax will use commercially reasonable efforts to provide support for the Products. If support is required by the Service Provider, the Service Provider must raise a support case in accordance with Probax's support policy available at www.probax.io/support-policy. The Service Provider may also consult support articles available at kb.probax.io.
• Updates. The Service Provider acknowledges that Probax may, at its discretion, release new updates, enhancements, maintenance releases, patches, bug-fixes or other modifications and to the Products, and in some cases discontinue features.
• Modifications. The Service Provider acknowledges that Probax may, at its discretion, modify the features and functionality of the Products including: (1) establish new limits on the Products (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Products; (2) remove or restrict application programming interfaces or make alterations to data retention periods; (3) modify the Products, its infrastructure, system configurations or routing configuration; or (4) modify or replace any hardware or software within its infrastructure or in equipment used to deliver the Product.  

• Reporting. The Platform automatically generates reports of the Service Provider’s use of the Products and sends these reports to the Distributor on a monthly basis (Monthly Platform Report). The Service Provider must provide to the Distributor any other information that the Distributor may reasonably request from time to time.
• Books and Records. The Service Provider must keep complete, accurate, and current books and records relating to the supply and distribution of the Products. The Service Provider agrees that during the Term and for 3 years after the end of the Term, Probax or its authorized representatives may audit the Service Provider’s use of the Products to confirm compliance with these Platform Terms.
• Audits. Probax, or its designated representative, will provide at least 14 days' prior written notice before undertaking an audit under Section 2 and may not conduct more than one audit of the Service Provider under Section 6 in any 12 month period. Any audit under Section 6 must be undertaken during the Service Provider’s normal business hours and must not unreasonably interfere with the Service Provider’s business activities. The Service Provider must reasonably cooperate with Probax or its authorized representatives and any third-party auditor and will, without prejudice to Probax’s other rights, address any non-compliance identified by the audit by promptly paying the related additional fees. This action will be taken in collaboration with the Service Provider's Distributor, ensuring adherence to all terms without affecting Probax's other rights.

• Probax monitors the use of the Products according to a Acceptable Use Policy created to prevent improper or abnormal use of the Products to maximize the user experience for all Probax customers. The Acceptable Use Policy is available at www.probax.io/acceptable-use-policy and comprises, but is not limited to, elements such as pricing abuse, Product abuse or misuse, other abuse or Product policy violations. 
• Additional fees are not charged when customer use the Products reasonably and normally. In determining the scope of Acceptable Use, Probax considers the relevant customer’s license and the observed use of all Probax customers, technical advances and the current price rate of all necessary assets. Probax will adjust these values when there is reasonable cause, and this will often result in the raising of thresholds.
• Where a customer is in breach of the Acceptable Use Policy, Probax will contact the customer and/or their nominated Distributor to discuss the situation and potential alternatives which may include requiring them to purchase additional licenses.

• Right to Suspend. Probax may at any time suspend the Service Provider’s access to the Products, in whole or in part, for the following reasons:

• • • To comply with any contractual, statutory, and/or regulatory obligation including, a request or order from law enforcement, a competent judicial, governmental, supervisory or regulatory body or a Sanctions Authority (as defined in Section 14.2(1) below);
    • If Probax has reasonable grounds to suspect that the Service Provider, or any of its Resellers or End Users have acted or will act fraudulently or unlawfully, or in a way that could prejudice Probax, the Service Provider, or any of its Resellers or End Users;
    • Where the Service Provider, or any of its Resellers or End Users breach any legal, contractual, regulatory, statutory, or administrative obligation;
    • In case of Force Majeure (as defined in Section 13.8 below);
    • If Probax is informed by the Service Provider that any Product access credentials have been compromised;
    • At the Service Provider’s request for specific Reseller’s or End-Users, to the extent that it is technically possible;
    • If Probax establishes or has a reasonable belief that: (a) the Service Provider, or any of its Resellers or End Users impairs or endangers the operational availability of any Product; (b) such action is necessary to prevent or protect against fraud, tricks, tampering, schemes, false or invalid numbers, false credit devices, electronic devices, or any other fraudulent means or devices; or (c) such action is necessary to protect Probax, Probax Affiliate, their affiliates and their respective officers, directors, shareholders, employees and agents, and/or others against actual or potential adverse financial effects;
    • If the Service Provider fails or refuses to provide information, or provides false information, regarding the Service Provider’s past or current use of the Products, or characteristics pertaining to its use or planned use of the Products;
    • Where necessary for maintenance of Probax’s (or Probax Affiliate’s) APIs or infrastructure; or
    • If the Service Provider continues to use any Product that is at or past the end of its life.
• Notice. If reasonably practicable under the circumstances, Probax will inform the Service Provider in advance of the suspension, stating the reason(s) for the suspension. Without prejudice to Probax’s right to directly inform any Reseller or End User (all of which Probax expressly reserves), the Service Provider is primarily responsible for informing affected Resellers and End Users of the suspension and will bear all liability arising from any default or delay in providing such information.
• Length of Suspension. Probax will use commercially reasonable efforts to limit the scope and length of the suspension in cases where the Service Provider is not responsible for the suspension or the need for the suspension did not arise because of the failure of the Service Provider to comply with its obligations to Probax.
• Consequences of Suspension. Probax will not be liable to anyone for any loss or damage arising from or related suspension of access to the Products, including for any of the causes of the suspension mentioned in Section 8.1.

• Ownership of Proprietary Rights. Notwithstanding any references in these Platform Terms to “resell”, “sell”, “sale” or “sold”, the Products are licensed and not sold under these Platform Terms. The Products are and will remain the sole and exclusive property of Probax, Probax Affiliate or their suppliers or licensors, as applicable, whether the Products are separate or combined with any other products. Probax’s, Probax Affiliate’s and their suppliers’ and licensors’ rights, as applicable, under this Section will include, but are not limited to: (1) all copies of the Products, in whole or in part; (2) all intellectual property rights in the Products; and (3) all modifications to, and derivative works based upon, the Products. The Service Provider will not delete or in any manner alter the intellectual property rights notices, if any, appearing on the Products as delivered or made available to the Service Provider. As a condition of the license rights granted to Service Provider in these Platform Terms, the Service Provider will reproduce and display such notices on any copy of any Products.
• Third-Party Infringement. The Service Provider hereby agrees to use reasonable efforts to protect Probax’s, Probax Affiliate’s and their suppliers’ and licensors’ intellectual property rights contemplated in these Platform Terms and will report promptly to Probax any infringement of such rights of which the Service Provider is aware or becomes aware. Probax and Probax Affiliate reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of its intellectual property rights in the Products and the Platform.
  

• Trademarks and Probax authorizes the Service Provider’s limited use of any trademarks, whether registered or unregistered, of Probax or Probax Affiliate (“Trademarks”) in association with marketing the Products within the Territory.
• Restrictions on use of Trademarks. The termination or suspension of the Service Provider’s rights under these Platform Terms will automatically terminate the Service Provider’s rights under Section 10.1. The Service Provider recognizes and agrees that its use of any of the Trademarks will be for the exclusive benefit of Probax. Probax and Probax Affiliate reserve the sole and exclusive right at their discretion to assert claims for infringement or misappropriation of their intellectual property rights to the Trademarks.
• Rights in Trademarks.Probax, Probax Affiliate and Probax’s suppliers and licensors reserve all rights to their respective trademarks in all countries, including to those countries within the Territory. The Service Provider will not have or obtain any right, title or interest in and to the Trademarks, which will remain the sole and exclusive property of Probax and/or Probax Affiliate, or their suppliers or licensors and the Service Provider must not take any action that would in any way infringe or interfere with these rights, title or interest. The Service Provider will not at any time adopt or register any name, internet domain, designation, or trademark that is the same as or confusingly or deceptively similar to any Trademark, and the Service Provider hereby assigns to Probax any of the foregoing if, in Probax’s reasonable determination, it is the same as or is confusingly or deceptively similar to any Trademark. The Service Provider agrees not to contest the rights to or ownership of these Trademarks anywhere in the world.
• Trademark Assignment. Should any right, title or interest to any Trademark or any goodwill arising out of the Service Provider’s use of any Trademark become vested in the Service Provider by operation of law or otherwise, the Service Provider will hold such right, title, interest or goodwill in trust for Probax/Probax’s Affiliate and will immediately and unconditionally assign (with full title guarantee) free of charge any such right, title, interest or goodwill to Probax or Probax’s Affiliate (at Probax’s election) and agrees to unconditionally execute any documents and do all acts that Probax/Probax’s Affiliate requires for this purpose. If Service Provider fails to execute and deliver any such documents or do any such act within 5 days of Probax’s written request, the Service Provider irrevocably hereby appoints and authorizes Probax to execute such documents or do any such act as its authorized agent and attorney will full power to act in its stead.
• Advertisement. Any press releases, advertisements or publications of the Service Provider which refer to the Products or Probax must be approved by Probax prior to release, publication or distribution.

• Security measures. Data that the Service Provider, any of its Resellers, or any of their End Users processes, stores, or transmits using the Products (User Data) is protected by technical and administrative security measures implemented and maintained by Probax which is designed to protect User Data from unauthorized access, destruction, use, modification, or disclosure.
• User Data. Probax hereby acknowledges that it acquires no ownership right, title, or interest to the User Data. The Service Provider hereby grants Probax, Probax Affiliate and their affiliates a worldwide, non-exclusive, transferable license to access, use, process, copy, distribute, perform, export, transfer and display User Data that belongs to the Service Provider as necessary to provide the Service Provider with the Products. The Service Provider agrees that it will ensure that any Reseller or End User in the Service Provider’s network also grants Probax a worldwide, non-exclusive, transferable license to access, use, process, copy, distribute, perform, export, transfer and display such party’s User Data as necessary to provide such party with the Products as a condition of such party’s use of those Products. Without the owner’s consent (which it may withhold in its sole discretion), the User Data may not be: (1) used by Probax other than as permitted under these Platform Terms; or (2) individualized, sold, assigned, or leased by Probax. Probax will have the right to monitor and analyze the Service Provider’s use of the Products and to use the results of such monitoring to improve the Products during and after the Term.
• The Service Provider represents and warrants that: (1) it has obtained, and will obtain, all consents and approvals necessary to provide the User Data to Probax, and for Probax to use the User Data in accordance with these Platform Terms; (2) it has all rights necessary to grant the license in Section 11.2; and (3) Probax’s use of the User Data in accordance with these Platform Terms will not violate: (a) any applicable laws or regulations; (b) any intellectual property, copyright, contract, privacy, publicity or other rights, or (c) any policies or terms governing the use of the User Data.
• Liability for User Data. Other than the express obligations under these Platform, Probax assumes no responsibility or liability for User Data and will not be responsible for any access to or use of User Data by third parties or their products or services, or for the security or privacy practices of any third-parties or their products or services.
• Probax Employees and Subcontractors. Any Probax employee or subcontractor that accesses User Data pursuant to Section 11.2 will be bound by confidentiality restrictions at least as restrictive as those in these Platform Terms.
• Privacy Policy. Probax collects certain data and information about users, including Service Providers, Resellers and End Users, in connection with the provision of the Products. Probax collects, uses, shares, discloses, transfers, and processes all such data and information in accordance with its Privacy Policy, which is incorporated by this reference into, and made a part of, these Platform Terms. The current version of the Privacy Policy is available at [insert website].
• Confidential Information. In these Platform Terms, the term “Confidential Information”  means User Data, the Products, these Platform Terms, and valuable, proprietary and confidential information with respect to a Party’s business, including, information that may relate to the Party’s financial information, condition, or affairs, financial projections, financial analysis, corporate organizational documents, business plans, forecasts, products, whether in distribution or under development, trade secrets, computer source code and object code, software and other product designs and specifications, methodologies, data, developments, ideas, improvements, product and marketing plans, customer and vendor lists, information on the performance, capacity or functionality of the Products and other oral, visual, or written information that the Party designates as confidential or proprietary at the time of disclosure or that, under the circumstances surrounding disclosure, or by the nature of the information, would reasonably be understood by the other Party to be confidential or proprietary, including any of the foregoing that is Confidential Information of a Party’s affiliates, customers, vendors, partners, licensors or other third parties with respect to which that Party has an obligation of confidentiality. The Products contain trade secrets and are Confidential Information. The term “Confidential Information” does not include information of one Party that: (1) is disclosed in a printed or web publication available to the public, is otherwise in the public domain at the time of disclosure, or becomes publicly known through no wrongful act or omission on the part of the other Party; or (2) is obtained by the other Party lawfully from a third party who is not under an obligation of secrecy to the first party and is not under any similar restrictions as to use.
• Confidentiality Obligations. The Service Provider will not disclose or provide access to the Products or any part thereof to anyone for any purpose except as contemplated by these Platform Terms. Each Party agrees that it will maintain other’s Confidential Information in confidence, prevent its disclosure, and protect it from unauthorized use with at least the same degree of care that it uses to protect its own proprietary information and with no less than reasonable care. Each Party will prevent copying or use of any Confidential Information by its employees and others except for the purpose of exercising the rights expressly granted under these Platform Terms. The Service Provider will ensure that anyone to whom it make disclosures about, or provides access to the Products are bound by confidentiality obligations at least as protective of Probax as these Platform Terms. If a Party is required to disclose any of the other Party’s Confidential Information by a judicial or governmental order, the Party will give the other Party reasonable advance notice of the disclosure and the opportunity for the other Party to contest, at its own expense, the disclosure of the Confidential Information, where such notice is not prohibited by law or government order
• Unauthorized Access. Where Probax becomes aware of any unauthorized copying or use of another Party’s Confidential Information or reasonably believes that there has been unauthorised access to Confidential Information (other than due to the Service Provider, a Reseller or End User), Probax will use commercially reasonable efforts to let the Service Provider know and give the Service Provider information about what has happened. Depending on the nature of the unauthorised access, and the location of the affected data, the Service Provider may be required to assess whether the unauthorised access must be reported to the affected Reseller or End User and/or a relevant authority. The Service Provider must immediately notify Probax if it becomes aware of any unauthorized copying or use of Probax’s or the Probax Affiliate’s Confidential Information or reasonably believes that there has been unauthorised access to, copying or use of such Confidential Information.
• Monitoring. The Service Provider understands and acknowledges that Probax may monitor the operation and usage of the Products through reporting functions in the Products. The Service Provider agrees to facilitate such monitoring by ensuring that all firewall ports required for such monitoring are open and to notify Probax if there are any operational issues that could prevent remote monitoring. Subject to Section 11.2, Probax will have the right to use any and all data and information related to Service Provider’s, and any Reseller’s or End User’s use of the Products for any lawful purpose including invoicing, statistical analysis, benchmarking, and research purposes.
• Feedback. The Service Provider is welcome to provide suggestions, ideas or other feedback regarding Probax’s products and services (Feedback). To the extent that the Service Provider provides Probax with any Feedback, Probax will be free to use the Feedback in any manner and for any reason (including to incorporate the Feedback into future versions of its products and services), with no obligation of confidentiality or compensation to the Service Provider and without restriction of any kind.
• Data Location. The Service Provider can use the Platform to designate the Probax data center in which the Service Provider has its User Data stored. Notwithstanding the foregoing, Probax may without notice: (1) move the data stored in a data center operated by Probax to another Probax data center within the same country, and (2) move the data stored in a data center operated by the Probax in another country.
• Return of Data. Upon request by the Service Provider, Probax will erase all or any part of the User Data stored in a Probax data center, to the extent so requested by the Service Provider. Probax will certify to that Service Provider that all such copies of the User Data have been erased. Notwithstanding the foregoing, Probax may use any archival media containing the User Data only for back-up purposes and will maintain such back-up copies of the User Data as Confidential Information of that Service Provider.
• Data Controller. The Service Provider agrees that, the Service Provider is the data controller of the User Data and is solely responsible for compliance with all applicable laws, rules, and regulations pertaining to data controllers. The Service Provider acknowledges that Probax does not know what data is contained in the User Data.
• Product Usage Data. The Products automatically collect and transmit technical data about the performance or use of the Products (“Product Usage Data”), which is in aggregated or deidentified form only. Product Usage Data does not include the contents of any User Data or any personally identifiable information. Probax and the Products may collect, generate, and derive Product Usage Data for Probax’s business purposes, including to: (1) track usage for billing purposes; (2) provide support for the Products; (3) monitor the performance and stability of the Products; (4) prevent or address technical issues with the Products; and (5) improve the Products and develop derivative and new products. The Service Provider agrees, and will ensure that any Reseller or End User in the Service Provider’s network will not interfere with the collection of Product Usage Data. All rights, title, and interest, including all intellectual property rights in and to Product Usage Data, the know-how and analytical results generated in the processing of Product Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Products based on the Product Usage Data is owned by Probax.

• Power and Authority. Each Party represents and warrants that it has sufficient corporate right and authority to grant to the other Party all licenses and rights granted under these Platform Terms.
• Disclaimer of Other Warranties. Probax makes no warranty to the Service Provider except the warranty in the preceding Section 1. All Products and accompanying documentation, and all other materials that Probax may provide to the Service Provider under these Platform Terms are provided "AS IS" and “AS AVAILABLE”. To the maximum extent allowed by applicable law, the warranties in Section 12.1 above are the sole and exclusive warranty of any kind, express or implied, that is made by Probax in connection with these Platform Terms, and Probax SPECIFICALLY DISCLAIMS ALL STATUTORY, Express or implied WARRANTIES and representations of any kind as well as any warranties arising from USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANC, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTies THAT THE Products are FREE OF DEFECTS or error-free or will be uninterupted; (2) any WARRANTIES OF MERCHANTABILITY, functionality, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD PARTY RIGHTS BY FILTERING, DISABLING, OR REMOVING SUCH THIRD PARTY'S SOFTWARE, SPYWARE, ADWARE, COOKIES, EMAILS, DOCUMENTS, ADVERTISEMENTS OR THE LIKE. Without limiting the generality of the foregoing, Probax specifically does not warrant that: (1) the Products will meet the requirements of the Service Provider, any Reseller, or any End User, or that the operation of the Products will be, accurate, uninterrupted, reliable, without loss of data, without defect or error-free; or (2) that transmission of User Data will always be secure or that unauthorised third parties will never be able to defeat the security measures.
• Non-excludable Warranties. To the extent that Probax may not, as a matter of applicable law, disclaim any warranty, guarantees or other rights provided by applicable law (“Non-Excludable Warranties”), the scope and duration of such Non-Excludable Warranties will be the minimum permitted under such law and Probax is only bound to the extent of express promises made in these Platform Terms. Probax’s liability for breach of any Non-Excludable Warranties is limited, at Probax’s option, to either replacing or paying the cost of replacing the applicable Product (unless the Non-Excludable Warranties provides otherwise).
• Future Functionality. Probax provides no warranty on the delivery of any future functionality or modification or features or dependent on any oral or written public comments Probax make regarding future functionality or modification or features.

• Service Provider Indemnity. The Service Provider hereby indemnifies Probax, Probax Affiliate and their affiliates against all losses, costs (including legal costs), expenses, demands or liability arising out of, or in connection with, a third party claim against Probax, Probax Affiliate and their affiliates in relation to the Service Provider’s use of the Products.
• Settlement of Claims. Despite any other provision of these Platform Terms, except with the prior written consent of Probax, the Service Provider must not: (1) settle or compromise any cause of action, suite or other proceeding if the settlement or compromise obliges Probax, Probax Affiliate or their affiliates to make any payment or bear any liability or be subject to any injunction or other interim measures due to such settlement or compromise; (2) assume any obligation or grant any rights or licences on behalf of Probax; or (3) make any statement at any time admitting liability for or on behalf of Probax.

• Exclusion of Damages. In no event will either Party be liable to the other Party for any special, incidental, indirect, exemplary, statutory, punitive or consequential damages (including without limitation for loss of profits, loss of use or data, damage to systems or equipment, business interruption or cost of cover) in connection with or arising out of the delivery, performance or use of the Products or any other materials or Maintenance provided by Probax under these Platform Terms, whether alleged as a breach of contract claim or as another type of claim including, without limitation, claims for unjust enrichment, unfair competition or business practices, or other tortious conduct including negligence, strict liability, product liability, or otherwise, and whether or not such Party has been advised of the possibility of such damage.
• Limitation of Damages. In addition to and not without limiting Section 2, Section 12.3 and Section 14.1, the total cumulative liability of Probax under these Platform Terms to the Service Provider, and to its Resellers and End Users, whether in contract, in tort (including negligence or strict liability), or any other legal theory, will not exceed the amount of license fees that the Service Provider has paid to the Distributor in the 12 month period preceding the circumstances giving rise to the first claim at issue. The existence of multiple claims by any one party or from multiple parties with respect to the same underlying acts, omissions or occurrences will not expand this limit. Probax will not be liable for any delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications or other systems outside Probax’s reasonable control.
• Exceptions. The limitations in Section 14.1 do not apply to liability that cannot be excluded or limited by law or which arises from fraud, gross negligence, wilful misconduct or breaches of Section 9, Section 10 or Section 11  or to any other misappropriation of the other Party’s intellectual property.
• Third party products. Probax disclaims all liability and responsibility for any third party product or service (whether support, availability, security or otherwise) or for the acts or omissions of any third party providers.
• Transmission and Loss of Data. The Service Provider acknowledges and agrees that: (1) the use of the Products involves transmission of User Data over networks which Probax does not own, operate or control owned by Probax; and (2) Probax bears no liability or responsibility for any User Data lost, altered, intercepted or stored across these networks. Additionally, Probax bears no liability to anyone for the loss or misappropriation of any User Data that the owner of such data fails to encrypt using the encryption available in any Product that the owner used to process that User Data.
• Failure of Essential Purpose. The Parties acknowledge that these limitations reflect the allocation of risk set forth in these Platform Terms and that Probax would not enter into these Platform Terms without the limitations on its liability in this Section 14. The Parties agree that the limitations specified in this Section 14 will survive and apply even if any limited remedy specified in these Platform Terms is found to have failed of its essential purpose.

15. Compliance with Laws and Sanctions

• Compliance. The Service Provider and all of its owners, directors, officers, employees, agents, or contractors (referred to collectively as “Service Provider” in this Section 15) will use the Products only in accordance with these Platform Terms and with all applicable laws.

• The Service Provider acknowledges and agrees that the Products may be subject to economic sanctions and export and import controls and regulations of the respective governmental institutions of: (a) the United States (“US”); (b) the United Nations Security Council; (c) the European Union or any member state thereof (“EU”); (d) the United Kingdom (“UK”); (e) Switzerland; (f) Australia; (g) other countries (each, a “Sanctions Authority”).
• The Service Provider agrees not to engage in any transaction or activity that would result in liability to Probax under any Sanctions Authority’s sanctions or export or import control law or regulation. The Service Provider agrees to comply with all Sanctions Authorities’ economic sanctions and export and import control laws and regulations as if it were subject to each of them, and with all otherwise applicable export or import regulations of other countries.
• The Service Provider agrees that it will not allow any third-party to remove or export or import the Products in breach of any Sanctions Authorities’ economic sanctions and export and import control laws and regulations including by allowing the export or re-export or import of any part of the Products or any direct product thereof: (a) into (or to a resident or entity incorporated under the laws of) any country subject to a comprehensive Sanctions Authority embargo; (b) to anyone on any of the lists of designated or sanctioned individuals or entities (or equivalent) issued by any Sanctions Authority, each as amended, supplemented or substituted from time to time, including, without limitation, the List of Specially Designated Nationals and Blocked Persons, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, each administered by OFAC; the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions; the Consolidated List of Financial Sanctions Targets in the UK and Ukraine; List of Persons Subject to Restrictive Measures in View of Russia’s Actions Destabilising the Situation in Ukraine, each administered by Her Majesty’s Treasury; and the Swiss Secretariat of Economic Affairs Overall list of sanctioned individuals, entities and organizations (collectively, the “Lists”); or (c) to any country, entity or person to which such export, re-export or import is restricted or prohibited, or as to whom any Sanctions Authority Jurisdiction requires an export license or other governmental approval at the time of export from within a Sanctions Authority Jurisdiction, respectively, or re-export without first obtaining such license or approval.
• The Service Provider assumes be solely responsible for determining whether the Service Provider may export, re-export, or import the Products in a legally compliant manner and obtain any applicable licenses to export, re- export, or import the Products and all related costs and for the violation of any export law or regulation.
• The Service Provider represents and warrants that the Service Provider is not included on any of the Lists. The Service Provider will immediately inform Probax if the Service Provider becomes included on any of the Lists and will cooperate with Probax’s investigation and/or reporting of such action to appropriate Sanctions Authorities, which may occur at Probax’s sole discretion.
• The Service Provider may not use or enable the use of the Products by any Reseller, distributor or any End User or any other third party whose rights are derivative of any of them who is a resident of, entity incorporated under the laws of, or under control of any of the governments of any country subject to a comprehensive Sanctions Authority embargo.
• Each time the Service Provider uses or enables the use of the Products, the Service Provider represents, warrants, and covenants that none of the Service Provider, its distributors, Resellers, End Users, or any other third party whose rights are derivative of any of them (a) is a resident of, an entity incorporated under the laws of, or under the control of the government of any country subject to a comprehensive Sanctions Authority embargo; (b) will download or otherwise export, re-export or import any Products, directly or indirectly, to the above mentioned countries or to residents or entities incorporated under the laws of those countries, or permit any third party to do so; (c) are listed in any of the Lists or subject to any Sanctions Authority’s sanctions; or (d) will use or allow the use of the Products for any purposes prohibited by any Sanctions Authority Jurisdiction law, including, without limitation, for the development, design, manufacture, or production of nuclear, chemical, or biological weapons, weapons of mass destruction or their proliferation; or (e) are using or permitting others to use the Products to create, store, backup, distribute, or provide access to child pornography or any other content or data which is illegal under the applicable law, including that where the Service Provider is domiciled.
• Probax will not be liable to the Service Provider or any of its officers, directors, employees, agents, contractors, designees, customers and/or any other party, for any refusal or failure to provide goods, software, services or technical data as a result of any action taken as a result of any inclusion of the Service Provider on any of the Lists.
• If Probax has a good faith belief that the Service Provider, or any third party acting on the Service Provider’s behalf, intends to violate, has violated, or causes Probax to violate, any Sanction Authority’s export controls or sanctions law or regulation, Probax may terminate the agreement created by the Service Provider’s acceptance of these Platform Terms immediately, notwithstanding any other provision of these Platform Terms to the contrary. In the event of such termination, Probax will be relieved of all liability and obligations of any kind under these Platform Terms.
• The Service Provider will indemnify and hold Probax harmless for any and all claims, losses, damages, liabilities, expenses and costs of whatever nature, including reasonable attorneys’ fees and expenses, arising out of the Service Provider’s non-compliance with any Sanctions Authority’s export or import control or sanctions laws or regulations or the Service Provider’s inclusion on any of the Lists. Probax will be relieved of all claims and liabilities arising from (a) termination pursuant to this Section 15 of the agreement created by the Service Provider’s acceptance of these Platform Terms, and (b) Probax’s refusal, failure or inability to perform as a result of the Service Provider’s inclusion on any of the Lists.
• Probax may audit the Service Provider’s compliance with this Section 15 on such terms as Probax determines reasonable. The Service Provider will also, upon request from Probax, provide to Probax the names of all Resellers, distributors, Ends Users and all third parties whose rights to use the Products are derivative of any of them.

• Termination. The agreement created by these Platform Terms may be terminated by either Party if: (1) the other Party breaches any material term or condition of these Platform Terms and fails to cure such breach within 30 days after written notice; and (2) the other Party ceases doing business. Probax may terminate the agreement created by these Platform Terms if the Service Provider breaches any material term or condition of these Platform Terms which in Probax’s reasonable opinion cannot be remedied.
• Convenience. Probax may terminate the agreement created by these Platform Terms without cause and without liability to the Service Provider or any Reseller or End User, if it provides the Service Provider at least 60 days’ prior written notice.
• Non-renewal. Unless the Order specifies otherwise, the Service Provider may terminate the agreement created by these Platform Terms on expiry of the term set out in the Order subject to a 90 days’ prior written notice.
• Termination of Distribution Agreement. If the right of the Distributor to distribute the Products terminates for any reason during the Term and the Service Provider has an existing Order with a term that extends past the termination date of the Distributor’s distribution rights, Probax will work with the Service Provider to transition the Service Provider to another distributor.
• Termination upon Change of Control. Probax may terminate the agreement created by these Platform Terms upon 30 days written notice to the Service Provider if the Service Provider undergoes: (1) any consolidation or merger of the Service Provider with or into any other entity, or a similar transaction, in each case after which the holders of the Service Provider’s outstanding shares or other ownership interest immediately before such consolidation, merger or similar transaction do not, immediately after such consolidation, merger or similar transaction, retain equity representing a majority of the voting power of the surviving entity; (2) the sale, transfer or assignment of equity in the Service Provider representing a majority of the voting power of the Service Provider’s outstanding voting equity; or (3) the sale of all or substantially all of the Service Provider’s assets relating to these Platform Terms.
• Termination upon Bankruptcy. The agreement created by these Platform Terms will terminate without notice or further action, if a proceeding is commenced or a petition is filed by or against a Party seeking relief under any bankruptcy, insolvency, dissolution, liquidation, receivership, or similar law, or seeking the appointment of a receiver, trustee, custodian, sequestrator, conservator, judicial manager, or similar official for the Party or for a substantial part of its property or assets, or if a Party makes an assignment or trust arrangement for the benefit of creditors, or if a Party takes any action for the purpose of effecting any of the foregoing or any other proceedings with a similar purpose.
• Effect of Termination. Upon termination or expiration of the Term: (1) all licenses granted to the Service Provider by these Platform Terms will terminate; (2) the Service Provider must confirm to Probax that all installed instances of the Products have been removed and uninstalled from all of the Service Provider’s machines; (3) and the Service Provider must return to Probax any Probax-owned hardware at the Service Provider’s expense and using shipping methods designated by Probax.
• Damage Limitations. Neither Party will be liable to the other Party in the event of expiration or early termination of the agreement created by these Platform Terms for compensation, reimbursement or damages on account of loss of prospective profits or anticipated sales, or on account of expenditures, investments, leases or commitments in connection with the business or goodwill of the other Party. Expiration or termination of the agreement created by these Platform Terms for any reason will be without prejudice to any right which will have accrued to the benefit of either Party before such expiration or termination. Each Party will remain liable to the other Party for any breach of the agreement created by these Platform Terms by the breaching Party which exists at the time of such expiration or termination. The non-breaching Party may seek such remedies against the breaching Party with respect to any such breach as are provided in these Platform Terms or as are otherwise available at law or in equity.

• Decryption. Probax will not decrypt any files that the Service Provider or any of its Resellers or End Users have elected to encrypt.
• Non-exclusive Remedy. Except as otherwise expressly provided herein, the exercise by either Party of any remedy under these Platform Terms will be without prejudice to other remedies available under these Platform Terms, at law, in equity, or otherwise.
• Survival. The rights and obligations of the Parties contained in Section 2 (License Restrictions), Section 9 (Proprietary Rights), Section 10 (Trademarks and Advertisements), Section 6.2 (Books and Records), Section 11 (Confidentiality), Section 12.2 (Disclaimer of Other Warranties), Section 14 (Limitations of Liability), Section 16 (Termination) and Section 17(General Provisions) survive the termination or expiration of the agreement created by these Platform Terms.
• Construction. Unless the context otherwise, requires, whenever the words “including”, “include” or “includes” are used in these Platform Terms, they will be deemed to be followed by the phrase “without limitation”.
• Assignment. These Platform Terms will bind and inure to the benefit of each Party and to the Parties’ permitted successors and assigns. The Service Provider cannot assign its rights under these Platform Terms, in whole or in part, by operation of law or otherwise, without Probax’s prior written consent. Any assignment by the Service Provider of any its rights under these Terms without the prior written consent of Probax will be null and void. The Service Provider’s assignment of any of its rights under these Platform Terms with Probax’s consent will not relieve the Service Provider from liability as the primary obligor under these Platform Terms. Probax may assign its rights and obligations under these Platform Terms and the agreement created by these Platform Terms in connection with any change in control of Probax resulting from a merger, consolidation, stock transfer, asset sale or similar transaction.
• Severability. If a court of law holds that any provision of these Platform Terms is invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Platform Terms will remain in full force and effect.
• No Implied Waivers. The waiver by either party of a breach of any provision of these Platform Terms will not be a waiver of the provision itself or a waiver of any breach thereafter, or a waiver of any other provision herein
• Force Majeure. Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including acts of God, war, riot, acts of civil or military authorities, fire, floods, earthquakes, accidents, public health crisis, quarantine, strikes, or fuel crises.
• Notices. Unless specified otherwise in these Platform Terms, all notices, requests and other communications under these Platform Terms must be in writing and must be delivered to: (1) the Service Provider using the administrative email address that the Service Provider registers in the Platform, and (2) Probax at [insert address] or such other address for notices which Probax gives to the Service Provider. A notice delivered personally or by courier will be deemed given on the date of delivery. A notice sent by post will be deemed given on the date that is 5 days after deposit with the mail. A notice sent by email will be deemed given when the sender receives confirmation that the email has been delivered to the recipient’s email address.
• Relationship between the Parties. The Parties are entering into these Platform Terms as independent contractors. Nothing in these Platform Terms will be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither Party will have the authority to enter into any contracts in the name of or on behalf of the other Party or otherwise bind such other Party.
• Governing Law. These Platform Terms governed by the laws of Delaware, USA, without regard to any provisions concerning the applicability of the laws of other jurisdictions.
• Entire Agreement. These Platform Terms are the complete agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding the subject matter.