1.SERVICES. Thank you for selecting the services offered to you by PCS Consultants, Inc. and/or its subsidiaries (”PCS,” “we,” “our,” or “us”), on this website. These General Terms of Service together with PCS’s Privacy Statement provided to you on the website or documentation for the PCS services you have selected and the Additional Terms and Conditions for the Services (collectively, the “Agreement”) govern your use of this website and the PCS online services to which you are granted access under this Agreement, including but not limited to programs, components, internet-based services, content, technology, tools, updates, help content, and new releases (collectively, the “Services”). This Agreement constitutes a legal agreement between you (“you” or “your”) and PCS. By clicking “I AGREE” and/or accessing or using the Services, you indicate that you understand and agree to the terms of this Agreement. If you do not agree to the terms of this Agreement, you are not granted any rights in the Services, and you will not be able to access or use the Services.
Your access to or use of any Services may also be subject to your acceptance of separate agreements with PCS and/or third parties. This Agreement incorporates by reference applicable program, subscription, activation, ordering and pricing terms provided to you online or offline for the Services selected by you and for other PCS services made available to you through these Services, which may be subject to change from time to time. These terms will also govern your continued purchase and use of the Services, including such additional PCS internet-based services made available to you through the Services you have selected.
2. LICENSE GRANT AND RESTRICTIONS. Subject to the terms of this Agreement and any applicable payments, PCS grants you a personal, limited, nonexclusive, nontransferable license, during the initial term of the subscription and any applicable renewal term or other period of use provided in the activation and ordering terms, to access and use the Services, solely for the purpose described in the PCS description for the Services, and, if applicable, solely by such number of authorized users for which the applicable fee has been paid by you.
2.1 Except as expressly permitted herein or by applicable law, you must not, nor allow a third party to, do any of the following: (i) license, sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, distribute or commercially exploit to any third party the Services; (ii) modify or create derivative works based on the Services or its content, in whole or in part; (iii) access or attempt to access any other PCS systems, programs, features or data that are not made available in the Services or for public use; (iv) decompile, disassemble, or reverse engineer the Services; (v) interfere with the proper working of the Services, prevent access to or the use of the Services by other licensees or customers, or impose an unreasonable or disproportionately large load on PCS’s infrastructure; or (vi) use the Services except as expressly allowed under this Agreement. By using the Services, you warrant to PCS that you will not use the Services, including content, for any purpose that is unlawful or prohibited by this Agreement. If you violate any of these terms, your permission to use the Services automatically terminates. All license transfers are subject to written approval by PCS and may be subject to a transfer fee determined by PCS in its sole discretion. If your company is, or substantially all of its assets are, acquired by or merged into another company or sole proprietorship, please contact PCS via email at transfer_license@PCS.com regarding the transfer of your license to a new company.
3. RESERVATION OF RIGHTS AND OWNERSHIP. The Services are licensed not sold, and PCS reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property laws. PCS and its licensors, where applicable, own all right, title, and interest in and to the Services (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services by whoever made. PCS does not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.
4. FEES. If the Services are purchased by you on a payment or subscription basis, as selected by you, the following terms will apply to you. Payments are paid in U.S. dollars and credit cards will be charged in U.S. dollars unless otherwise indicated in program ordering and pricing terms provided to you on the website and/or in the program terms for the Services you have selected. The Services will be deemed accepted by you upon acceptance of this Agreement for trial versions (if applicable) of the Services and upon acceptance of this Agreement and payment of the applicable fees and/or subscription fees for paid for versions of the Services. Access to the Services will begin (i) for trial versions after your acceptance of this Agreement and after PCS receives and processes all the information requested in the registration process; and (ii) for paid versions after your acceptance of this Agreement and after PCS receives and processes all the information, including the credit card or bank account information requested by the registration or ordering process. You must have a valid credit card or a valid debit card acceptable to PCS with an appropriate logo (“Card”) or sufficient funds in a checking or savings account to cover an electronic debit of the fees to obtain access to the Services. The payment information you provide must be accurate, current and complete, and you agree to notify us promptly of any change in the payment information. When you subscribe and provide payment information, your Card or bank account will be debited, and will be automatically re-debited at the beginning of each applicable monthly or one-year subscription term (“Renewal Term”) at the then-current subscription rate to maintain access to the Services. Cancellation and renewal terms may be supplemented by program terms provided to you in writing or on the website for the Services you have selected.
5. TRIAL PERIOD. If you registered for a trial use of the Services (“Trial Period”), you will have the entire Trial Period within which to purchase the Services you are using in order to retain any Content (as defined below in Section 9) that you have posted, uploaded or entered into websites made available through the Services during the Trial Period. If you have not purchased the Services by the end of the Trial Period, all of the Content will be deleted. PCS is not responsible for any damages to you in the event you decide not to purchase the Services and PCS deletes the Content after the Trial Period expires. BY YOUR USE OF THE TRIAL VERSION OF THE SERVICES YOU UNDERSTAND AND AGREE THAT AFTER THE AMOUNT OF TIME SPECIFIED IN THE WEBSITE OR DISCLOSED DURING THE ORDERING PROCESS FOR THE SERVICES YOU HAVE PURCHASED, YOU MAY NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE SUCH TRIAL SERVICES OR ANY DATA YOU HAVE ENTERED INTO SUCH SERVICES UNLESS YOU PURCHASE THE APPROPRIATE FULL VERSION OF SUCH SERVICES.
6. REGISTRATION. Your registration information to use the Services must be accurate, current and complete as prompted in the sign-up process (the “Registration Data”). If you provide any Registration Data that is not accurate, current or complete, and do not promptly update your Registration Data, or PCS has reasonable grounds to suspect it is not accurate, current or complete, PCS may, in its sole discretion, suspend or terminate your account and refuse any current or future access and use of the Services or portion thereof.
8. FEEDBACK. PCS may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its services (“Feedback”). You agree that PCS may, in its sole discretion, use the Feedback you provide to PCS in any way, including in future modifications of the Services, multimedia works and/or advertising, marketing, and promotional materials relating thereto. You hereby grant PCS a perpetual, worldwide, fully transferable, sublicensable (through multiple tiers), non-revocable, fully paid-up, royalty-free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information you provide to PCS in the Feedback.
9. COMMUNICATION, CONDUCT, CONTENT. The Services may include a feature that allows you to exchange helpful information with other users of the Services and the public. Internet access is required to use these communication facilities. Please respect and interact with other users as you would in any public arena when using such features. You are responsible for exercising your judgment in evaluating and acting on (or ignoring) other users’ communication sessions. PCS does not endorse and is not responsible for the accuracy of the content in these facilities, and will not be liable for any damages incurred as a result of the submission, viewing or use of any such content. Users may post hypertext links to content hosted and maintained by third parties. PCS has no obligation to monitor these linked sites and is not responsible for them. Your access to any linked sites is at your own risk. Do not reveal information that you do not want to make public. You also agree to comply with applicable PCS discussion board policies made available to you for the Services you have selected.
9.1 Your right to use the Services is personal to you (and your company and its employees, if permitted by PCS). You are entirely responsible and liable for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored by you using the Services. You shall not use the Services for any illegal purpose in violation of any local, state, federal or international law. You must provide all required and appropriate warnings, information, and disclosure, comply with all applicable laws and regulations and take all other required and appropriate actions (collectively, “Information and Actions”) in connection with your use of the Services. If the Services do not provide adequate features for you to provide such Information and Actions, then do not use the Services. You agree that you will not use the Services to share, store, or in any way distribute financial data that is not in complete accordance with the law. Any users suspected of having financial information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. PCS does not own and is not responsible for the Content or data you submit on the website. You are encouraged to archive your data regularly and frequently and you bear full responsibility for archiving your data and sole liability for any lost or irrecoverable data.
9.2 You agree to defend, indemnify and hold PCS, its Suppliers as defined below, its corporate affiliates, officers, directors, employees, subsidiaries, and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys fees) resulting from or arising out of a claim that your Content infringes or misappropriates the intellectual property rights, or otherwise violates any other right, of a third party or a claim resulting from or arising out of your breach or alleged breach of this Agreement.
9.3 You agree that you will not use the Services to upload, post, link to, publish, distribute, reproduce or transmit any of the following:
9.3.1 Any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute an attack or “flaming” other participants, or would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or foreign law; or
9.3.2 Any Content or data to impersonate other individuals or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor); or
9.3.3 Any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by PCS) or engage in spamming or flooding; or
9.3.4 Any information or software which contains a virus, trojan horse, worm or other disruptive or harmful components; or is obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software or other material); or
9.3.5 Any information, software or other material obtained through the Services which is protected by copyright, or other proprietary rights, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder.
9.4 You agree that PCS has the right but not the obligation to monitor the Services and Content from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental requests, to operate the Services properly, or to protect itself or its users. PCS will not intentionally disclose any private email message unless required by law. PCS reserves the right to edit, refuse to post, remove or refuse to remove any information or materials, in whole or in part, that, in its sole discretion, is alleged to be unacceptable, undesirable, inappropriate or in violation of this Agreement.
10. PCS SERVICES. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by PCS (“PCS Services”). If you decide to use PCS Services, you may be subject to additional terms and conditions governing these PCS Services and separate fees may apply. You acknowledge that in accessing certain PCS Services through the Services you may upload or enter certain data from your account(s) such as names, addresses, and phone numbers, purchases, and sales among others, to the Internet. You hereby grant PCS permission to use information about your business and usage experience to enable us to provide the PCS Services to you, including updating and maintaining your data, addressing errors or service interruptions, and to enhance the types of data and services PCS may provide to you in the future. You also grant PCS permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally to improve services and to compare business practices with other company standards. We may use your data to create, market, or promote new PCS offerings to you and others.
11. DISCLAIMER OF WARRANTIES.
11.1 YOUR USE OF THE SERVICES, INCLUDING ANY SOFTWARE, AND CONTENT THEREIN, IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PCS, ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT AND SERVICE PROVIDERS, DISTRIBUTORS, RESELLERS AND SUPPLIERS (COLLECTIVELY “SUPPLIERS”) DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICES, CONTENT AND RELATED MATERIALS INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, AND SIMILAR LAWS OF ANY JURISDICTION. PCS AND ITS SUPPLIERS DO NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, QUALITY OR ANY CONTENT IN THE SERVICES, INCLUDING CONTENT POSTED ON OR LINKED FROM THE SERVICES. PCS AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ASSUME ALL RISKS ASSOCIATED WITH USING OR RELYING ON SUCH CONTENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES OR CONDITIONS ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
11.2 PCS AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, FINANCIAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IF SUCH ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. PCS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
12. LIMITATION OF LIABILITY AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF PCS, ITS AFFILIATES AND SUPPLIERS, AND YOUR EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY AND/OR DUE FROM THE REGISTERED USER FOR THE SERVICES TO PCS, ITS AFFILIATES OR ITS SUPPLIERS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PCS, ITS AFFILIATES AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; AND (B) DAMAGES RELATING TO TELECOMMUNICATION FAILURES, INTERNET, AND ELECTRONIC COMMUNICATIONS FAILURES, DELAYS OR LIMITATIONS, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET PCS SYSTEMS REQUIREMENTS, TAX POSITIONS TAKEN BY YOU; ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF PCS, ITS AFFILIATES AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PCS AND YOU. PCS WOULD NOT HAVE PROVIDED THIS SOFTWARE WITHOUT SUCH LIMITATIONS.
13. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY (“CONSENT”).
13.1 Consent to Electronic Communications. PCS may be required by law to send “Communications” to you that pertain to the Services, the use of information you may submit to PCS, and the services you choose. Certain third party services you choose may require Communications with the third parties who administer these programs (Third Party Services”). You agree that PCS, on behalf of itself, and others who administer such Third Party Services (as applicable), may send Communications to you by email and/or may make Communications available to you by posting them at one or more of our sponsored websites, such as smallbusiness.PCS.com. You consent to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other types of information that is made available to you or received from you in connection with the Services and Third-Party Services.
13.2 Consenting to Do Business Electronically. The decision of whether to do business electronically is yours. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Services for as long as you remain a subscriber to or use the Services. If you later decide that you do not want to receive future Communications electronically, write to us at Privacy Team, PCS Inc, 2800 East Commerce Center Place Tucson, AZ 85706. If you withdraw your consent to receive Communications electronically, we may terminate your use of the Services. We do not provide ISP services. You are responsible at your expense for access to the internet and this website and any necessary hardware and software and obtaining your own Internet service provider (which may be a wireless carrier). You agree to notify us promptly of any change in your email address or other Registration Data. You can do so by logging into your service and updating your customer profile.
14. AMENDMENT. PCS may change this Agreement from time to time effective upon posting of the modified Agreement on its website. Please review the Agreement periodically on this website for changes. PCS has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet-based services, pricing, technical support options, and other product-related policies, upon reasonable notice, including but not limited to posting information concerning such change in the Services selected by you or on a PCS sponsored website. Your continued use of the Services after PCS’s publication of any such changes shall constitute your acceptance of this Agreement as modified.
15. TERMINATION. Your rights under this Agreement may be terminated or suspended by PCS immediately and without notice, if you or any of your authorized users fail to comply with any terms of this Agreement or you no longer consent to receive Electronic Communications in accordance with Section 13. Upon termination you must immediately cease using the Services and all outstanding payments will become due and owing. Any termination of this Agreement shall not affect PCS’s rights hereunder. PCS may terminate a free account at any time in its sole discretion. Other terms regarding termination or expiration of the Services may apply in accordance with the activation and ordering terms for the specific Services you have selected. If you choose to cancel your account or any part of the Services, you must do so in accordance with the activation and ordering terms for the specific Services you have selected.
16. EXPORT RESTRICTIONS. You acknowledge that this website, the Services, and the software made a part of the Services are subject to U.S. export control regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the Services, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end-user; or to any end-user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that the Services may include technical data subject to such U.S. export regulations.
17. THIRD-PARTY PRODUCTS. In connection with your use of the Services, you may be made aware of services, products, offers, and promotions provided by third parties who are not affiliated with PCS (“Third Party Products”). If you decide to use any Third Party Products, you do so at your own risk and are responsible for reviewing the terms governing such Third Party Products. You authorize PCS to use and disclose your contact information, including name and address, for the purpose of making the Third Party Products you choose available to you. You agree that the third party, and not PCS, is responsible for the performance of the Third Party Products. The Services may contain or reference links to websites operated by third parties (“Third Party Websites”). PCS is not responsible for the content of, nor any link contained in such Third-Party Websites. The inclusion of any Third Party Website link in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by PCS of any data contained in, or services made available through any Third Party Website. You acknowledge that linked Third Party Websites may contain terms and privacy policies that are different from those of PCS. PCS expressly disclaims any liability for use of such Third Party Products and Third-Party Websites.
18. U.S. GOVERNMENT. The software that forms a part of the Services is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government end users who access or use the Services, acquire a license to use the software with only those rights set forth herein.
19. MISCELLANEOUS. This Agreement is the complete agreement between you and PCS and sets forth the entire liability of PCS, its corporate affiliates and its Suppliers and your exclusive remedy with respect to the Services and its use. Any modification or waiver of the terms herein by PCS must be in a writing signed by an authorized representative of PCS and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be interpreted to accomplish the objectives of such provision to the fullest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by you without the prior written approval of PCS, but may be assigned without your consent by PCS to (a) a parent or direct or indirect subsidiary, (b) in an acquisition of the assets including the Services, in whole or in part, (c) a successor by merger. Any assignment in violation of this Section will be void. This Agreement will be governed by California law, without regard to its conflicts of laws principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Santa Clara County, California or federal court for the Northern District of California.