Last Updated: August 16, 2021
Welcome, and thank you for your interest in ProjectManager.com, Inc. (“ProjectManager,” “we,” or “us”) and our website at www.ProjectManager.com, along with our related websites and mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and ProjectManager regarding your use of the Service. “You”, “you”, and “your” refers to any individual who creates an account on the Service, or, if the Service is being used on behalf of an entity by an individual authorized to accept the Terms of Service on its behalf, then “You”, “you”, and “your” refers to that entity.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PROJECTMANAGER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. ProjectManager Service Overview.
The Service may include provision to you of access to ProjectManager’s web-based project management and collaboration platform (“Platform”). “Platform” also includes any mobile app we make available to you for use in connection with the web-based features of the Platform. You may be given access to use the Platform to create, update, share, and publish information, data, text, messages or other materials. The Service may contain data, information, text, videos, photographs, links, written comments, scripts, software, graphics, and interactive features provided, generated, or made accessible on or through the Service.
You must be at least 18-years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18-years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration.
In order to use the Platform, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected].
4. General Payment Terms.
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
ProjectManager reserves the right to determine pricing for the Service. ProjectManager may change the fees for any feature of the Service, including additional fees or charges, if ProjectManager gives you advance notice of changes before they apply. ProjectManager, at its sole discretion, may make promotional offers with different features and different pricing to any of ProjectManager’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
You authorize ProjectManager to charge all sums for the orders that you make and any level of access to the Service you select as described in these Terms or other applicable terms published by ProjectManager, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, ProjectManager may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3. Subscription Service and Fees
a. The Service may include functionality for which ProjectManager usually charges a fee (a “Paid Version”). There may be more than one type of Paid Version available to you (e.g., with different levels of access or usage allowances) (each, a “Subscription Plan”). The fees charged to access Paid Versions (including any applicable taxes) are the “Subscription Fees.” Subscription Fees are assessed, in advance, for each Subscription Period. “Subscription Period” means each month (or such other period as agreed by you and ProjectManager) during which you have an active subscription to a Paid Version (a “Subscription”). The first Subscription Period begins on the date you activate a Subscription and, unless and until your Subscription is cancelled, each subsequent Subscription Period begins at the conclusion of the previous Subscription Period (e.g., each month, if your Subscription Period is a month; each year if your Subscription Period is a year).
b. If you activate a Subscription, you authorize ProjectManager to charge you the applicable Subscription Fees for that Subscription for each Subscription Period when they become due, on a going-forward basis and until cancellation of either the Subscription or your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). Your account will be charged the Subscription Fees for each Subscription Period automatically, on or about the first day of each Subscription Period, unless an alternate billing cycle is expressly agreed between you and ProjectManager. Each Subscription will continue unless and until you cancel the Subscription or we terminate it.
4.4. Free Trials.
If you signed up for a free trial for a Paid Version, you will not be charged the Subscription Fee for your use of the Paid Version during the free trial period. However, if you choose to purchase a Subscription to a Paid Version during your free trial period, your free trial will immediately end (regardless of whether there are days remaining in the free trial period), a Subscription Period will begin, and you will be charged the applicable Subscription Fee for the first Subscription Period (and for subsequent Subscription Periods as described in Section 4.3). At the end of any free trial for a Paid Version, if you have not purchased a Subscription, your access to the Platform may be downgraded to a version of the Platform with more limited functionality (which may include features allowing you to pay to access additional functionality) (a “Feature-Limited Version”). Unless otherwise expressly agreed by ProjectManager, you will not be given more than one free trial period with respect to any Paid Version.
4.5. Canceling Your Services.
You may cancel your access to the Platform (whether via a Subscription or otherwise) by emailing us at [email protected], calling us at 1-800-765-2495 (USA) or completing the “Contact Us” form on www.projectmanager.com or as may be specified within the Platform. Upon cancellation of a Subscription by you, you will continue to have use of access to the software for the remainder of the paid term (subject to your ongoing compliance with these Terms).
4.6. Plan Upgrades/Downgrades.
To downgrade or upgrade your Subscription Plan, simply go to the “Billing” page under the “Accounts” option on the dashboard. You may also downgrade by telephone at 1-800-765-2495 or by emailing ProjectManager support at [email protected].
4.7. Delinquent Accounts.
ProjectManager may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
4.8. Billing Information.
You must provide and at all times must maintain accurate, complete, and current billing information, including but not limited to your billing address and applicable payment information (e.g., for payments by credit card, credit card number and credit card expiration date; for payments by ACH, wire, or other agreed means, the information necessary to process those payment types). If you fail to disclose any such information, you agree that ProjectManager may continue charging you for any use of the Service unless you have terminated any and all Subscriptions. If you become aware of a potential breach of security to your billing information (such as credit card loss or theft), you must notify ProjectManager immediately.
4.9. Additional Fees.
ProjectManager reserves the right to quote additional fees for certain Services that may be arranged by mutual written agreement or paid for via invoice. If ProjectManager has entered into a separate invoicing contract with you, you agree to pay all undisputed invoices within 30 days, unless different payment due terms are agreed in such a contract, and you agree that ProjectManager may charge interest of 1.5% monthly (or the highest rate permitted by law) for past due invoices.
5. Licenses and Related Terms
5.1. Limited License and Grant of Access.
Subject to your complete and ongoing compliance with these Terms and so long as you are an active user of the Platform, ProjectManager grants you a worldwide, non-exclusive, non-sublicensable and non-transferable license to: (a) install and use one object code copy of any mobile application associated with the Platform obtained from a legitimate marketplace on a mobile device that you own or control; and (b) access and use the Service.
5.2. License Restrictions.
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it. You will not exploit, sell, rent, license or use the Service for any commercial use that violates any third party’s right.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant ProjectManager an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights.
The Service is, as between the parties, owned and operated by ProjectManager. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by or on behalf of ProjectManager are protected by intellectual property and other laws. All Materials included in the Service are the property of ProjectManager or its third-party licensors. Except as expressly authorized by ProjectManager, you may not make use of the Materials. ProjectManager reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1. Third-Party Services and Linked Websites.
ProjectManager may provide tools through the Service that enable you to export information, including User Content (defined below), to third-party services, including through features that allow you to link your account on the Service with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that ProjectManager may transfer that information to the applicable third-party service. Third-party services are not under ProjectManager’s control, and, to the fullest extent permitted by law, ProjectManager is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under ProjectManager’s control, and ProjectManager is not responsible for their content.
7.2. Third-Party Software.
The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
8.1. User Content Generally.
Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, templates, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2. Limited License Grant to ProjectManager.
By providing User Content to or via the Service, you grant ProjectManager a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3. Limited License Grant to Other Users.
By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4. Specific Rules for Photographs and Images.
If you post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
8.5. User Content Representations and Warranties.
ProjectManager disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize ProjectManager and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by ProjectManager, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause ProjectManager to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.6. User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. ProjectManager may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Project Manager with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, ProjectManager does not permit copyright-infringing activities on the Service.
8.7. Monitoring Content.
9.1. Text Messaging.
ProjectManager and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM PROJECTMANAGER, YOU CAN EMAIL [email protected] OR REPLY TO ANY SMS MESSAGE FROM PROJECTMANAGER WITH “STOP”. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
9.2. Push Notifications.
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct.
BY USING THE SERVICE, YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
c. attempt to access or search the Services or Materials or download Materials from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software or search agents provided by ProjectManager or other generally available third-party web browsers;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Copyright and Intellectual Property Protection
11.1. Respect of Third Party Rights.
ProjectManager respects the intellectual property of others and takes the protection of intellectual property very seriously, and ProjectManager asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2. DMCA Notification.
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Attn: Legal Department (Copyright Notification)
3721 Executive Center Dr., Suite 200
Austin, TX 78731
Email: [email protected]
11.3. Procedure for Reporting Claimed Infringement.
If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by ProjectManager with the user alleged to have infringed a right you own or control, and you consent to ProjectManager making such disclosure. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.5. Repeat Infringers.
ProjectManager’s intellectual property policy is to: (a) remove or disable access to material that ProjectManager believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (b) remove any User Content uploaded to the Service by “repeat infringers.” ProjectManager considers a “repeat infringer” to be any user that has posted User Content and for whom ProjectManager has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. ProjectManager will promptly terminate the accounts of users that are determined by ProjectManager to be repeat infringers. ProjectManager has discretion to terminate the account of any user after receipt of a single notification of claimed infringement or upon ProjectManager’s own determination.
11.6. Counter Notification.
If you receive a notification from ProjectManager that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide ProjectManager with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to ProjectManager’s Designated Agent through one of the methods identified in Section 11.2 and include substantially the following information:
a. your physical or electronic signature;
b. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
c. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
d. your name, address and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which ProjectManager may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.7. Reposting of Content Subject to a Counter Notification.
If you submit a Counter Notification to ProjectManager in response to a Notification of Claimed Infringement, then ProjectManager will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that ProjectManager will replace the removed User Content or cease disabling access to it in 10 business days, and ProjectManager will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless ProjectManager’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on ProjectManager’s system or network.
11.8. False Notifications of Claimed Infringement or Counter Notifications.
The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of ProjectManager relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” ProjectManager reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of Terms.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will, unless otherwise stated, be effective 30 days after posting or notice to you of the revisions. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified terms, you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification of the Service
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, ProjectManager may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by clicking the “Cancel Account” (or similarly designated) button in the Platform’s “Account” section or following other termination procedures as may be specified within the Platform or by contacting customer service at [email protected].
13.3. Effect of Termination.
Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay ProjectManager any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 13.3, 14, 15, 16, 16.3 and 17.9 will survive.
13.4. Modification of the Service.
ProjectManager reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. ProjectManager will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify ProjectManager, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “ProjectManager Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PROJECTMANAGER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PROJECTMANAGER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PROJECTMANAGER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR PROJECTMANAGER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PROJECTMANAGER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. ProjectManager does not disclaim any warranty or other right that ProjectManager is prohibited from disclaiming under applicable law.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PROJECTMANAGER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PROJECTMANAGER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PROJECTMANAGER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO PROJECTMANAGER FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and ProjectManager in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.4, you and ProjectManager agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PROJECTMANAGER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to ProjectManager.com, Inc., Attention: Legal Department – Arbitration Opt-Out, 3721 Executive Center Dr., Suite 200, Austin, TX 78731 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration(“Opt-Out Notice”). Once ProjectManager receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Any arbitration between you and ProjectManager will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting ProjectManager. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5. Notice of Arbitration; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). ProjectManager’s address for Notice is: ProjectManager.com, Inc., 3721 Executive Center Dr., Suite 200, Austin, TX 78731. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or ProjectManager may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or ProjectManager must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by ProjectManager in settlement of the dispute prior to the award, ProjectManager will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
If you commence arbitration in accordance with these Terms, ProjectManager will reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Austin, Texas but if the claim is for US $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse ProjectManager for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.7. No Class Actions.
YOU AND PROJECTMANAGER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ProjectManager agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.8. Modifications to this Arbitration Provision.
If ProjectManager makes any future change to this arbitration provision, other than a change to ProjectManager’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to ProjectManager’s address for Notice of Arbitration, in which case your account with ProjectManager will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if ProjectManager receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18.1. General Terms.
You agree that ProjectManager may identify you as a customer and may refer to you by name, trade name and trademark, if applicable, and that ProjectManager may briefly describe your business, if applicable, in its marketing materials on its websites. You hereby grant ProjectManager an irrevocable, perpetual, worldwide, fully-paid license to use your name and any of your tradename and/or trademarks solely in connection with the rights granted to ProjectManager pursuant to this marketing section. If you would like to request an exception to this term, then please contact us at [email protected]
18.3. Beta Features.
ProjectManager may, at its sole discretion from time to time, add new features to the Service that may be described as “Beta” features or services (collectively, “Beta Features”). These Beta Features will be considered part of the Service and all provisions of these Terms relating to the Service will apply to these Beta Features as well. Beta Features may include partially functional or non-functional features of the Service, and use of Beta Features also authorizes ProjectManager access to your usage data for product development research and analysis. You acknowledge that access to Beta Features is optional, and if you elect to use a Beta Feature, you agree to do so at your own risk.
18.4. Governing Law.
These Terms are governed by the laws of the State of Texas without regard to conflict of law principles. You and ProjectManager submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Travis County, Texas for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Texas, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.6. Additional Terms.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.7. Consent to Electronic Communications.
18.8. Contact Information.
The Service is offered by ProjectManager.com, Inc. located at 3721 Executive Center Drive, Austin, Texas 78731. You may contact us by sending correspondence to that address or by emailing us at [email protected]
18.9. Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.10. No Support.
We are under no obligation to provide support for the Service unless the Subscription Plan you are paying for (and remain current in payments for) specifically includes support (and in such case, ProjectManager is only obligated to use commercially reasonable efforts to provide the support specified for your Subscription Plan). In instances where we may offer support, the support will be subject to published policies.
18.11. International Use.
The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19. Notice Regarding Apple.
This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and ProjectManager only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.