This DayOne Subscription Agreement is between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually ("you" or "your"), and Pro-Vision.io INC. ("Pro-Vision", "we", "us", or "our"). It consists of the terms and conditions below and the Offer Details for your Subscription or renewal (together, the "agreement"). It is effective on the date we provide you with confirmation of your Subscription or the date on which your Subscription is renewed, as applicable. Key terms are defined in Section 7.
a. Right to use. We grant you the right to access and use the DayOne Services and to install and use the Software included with your Subscription, as further described in this agreement. We reserve all other rights.
b. Acceptable use. You may use the Product only in accordance with this agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the DayOne Services. You may not rent, lease, lend, resell, transfer, or host the Product, or any portion thereof, to or for third parties except as expressly permitted in this agreement or the DayOne Services Terms.
c. End Users. You control access by End Users, and you are responsible for their use of the Product in accordance with this agreement. For example, you will ensure End Users comply with the Acceptable Use Policy.
d. Customer Data. You are solely responsible for the content of all Customer Data. DayOne Services do not store any customer data, Pro-Vision does not have any access to the instance of DayOne Services you deploy and manage as part of your subscription, and there for Pro-Vision does not and will not assume any obligations with respect to Customer Data or to your use of the Product other than as expressly set forth in this agreement or as required by applicable law.
e. Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the DayOne Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the DayOne Services.
f. Administrator Assumption of Control. If you use an email address provided by an organization you are affiliated with (e.g. an employer or school) to order a DayOne Service individually, you represent that you have authority to use that organization’s domain to sign up for a Subscription in your capacity as a member of that organization. The organization, as the owner of the domain associated with your email address, may assume control over and manage your use of the DayOne Services. In such a case, your organization’s designated administrator (your "admin") may (i) control and administer your account, including modifying and terminating your access and (ii) access and process your data. Pro-Vision may inform you that your organization has assumed control of the DayOne Services covered by your Subscription, but Pro-Vision is under no obligation to provide such notice.
a. Available Subscription offers. The Portal provides Offer Details for available Subscription offers, which generally can be categorized as one or a combination of the following:
(i) Commitment Offering. You commit in advance to purchase a specific quantity of DayOne Services for use during a Term and to pay upfront or on a periodic basis in advance of use. With respect to DayOne Services, additional or other usage (for example, usage beyond your commitment quantity) may be treated as a Consumption Offering. Committed quantities not used during the Term will expire at the end of the Term.
(ii) Limited Offering. You receive a limited quantity of DayOne Services for a limited term without charge (for example, as a trial Subscription for up to 400 synced objects). Provisions in this agreement with respect to pricing, cancellation fees, payment, and data retention may not apply.
(i) By ordering or renewing a Subscription, you agree to the Offer Details for that Subscription. Unless otherwise specified in those Offer Details, DayOne Services are offered on an "as available" basis. You may place orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage the Subscription, but Affiliates may not place orders under this agreement. You also may assign the rights granted under Section 1.a. to a third party for use by that third party in your internal business. If you grant any rights to Affiliates or third parties with respect to Software or your Subscription, such Affiliates or third parties will be bound by this agreement and you agree to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Products.
(ii) Some offers may permit you to modify the quantity of DayOne Services ordered during the Term of a Subscription. Additional quantities of DayOne Services added to a Subscription will expire at the end of that Subscription. If you decrease the quantity during a Term, we may charge you a cancellation fee for the decrease in quantity as described below in Section 3.b..
c. Pricing and payment. Payments are due and must be made according to the Offer Details for your Subscription.
(i) For Commitment Offerings, the price level may be based on the quantity of DayOne Services you ordered. Some offers may permit you to modify the quantity of DayOne Services ordered during the Term and your price level may be adjusted accordingly, but price level changes will not be retroactive. During the Term of your Subscription, prices for DayOne Services will not be increased, as to your Subscription, from those posted in the Portal at the time your Subscription became effective or was renewed, except where prices are identified as temporary in the Offer Details, or Non-Pro-Vision Products. All prices are subject to change at the beginning of any Subscription renewal.
(ii) For Consumption Offerings, pricing is subject to change at any time upon notice.
(i) Upon renewal of your Subscription, this agreement will terminate, and your Subscription will thereafter be governed, by the terms and conditions set forth in the Portal on the date on which your Subscription is renewed (the "Renewal Terms"). If you do not agree to any Renewal Terms, you may decline to renew your Subscription.
(ii) For Commitment Offerings, your Subscription will automatically be renewed unless a 30 days' notice is given to Pro-Vision prior to the expiration of the Term.
e. Taxes. Prices are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. You must pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this agreement and which we are permitted to collect from you under applicable law. You will be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the distribution or provision of Products to your Affiliates. We will be responsible for all taxes based on our net income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our property ownership.
If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority; provided, however, that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You must ensure that any taxes withheld are minimized to the extent possible under applicable law.
a. Agreement term and termination. This agreement will remain in effect until the expiration, termination, or renewal of your Subscription, whichever is earliest.
b. Subscription termination. You may terminate a Subscription at any time during its Term; however, you must pay all amounts due and owing before the termination is effective.
(i) Standard Subscription. If you terminate a Subscription before the end of the Term, you must pay a fee equal to one-month’s Subscription fee and you will receive a refund of any portion of the Subscription fee you have paid for the remainder of the Term; provided, however, no refunds will be provided for partially unused months. (ii) Limited Offerings. Pro-Vision may terminate your Subscription to a Limited Offering at any time during the Term with a 30-day notice period.
a. Limited warranty.
(i) Software. We warrant for one year from the date you first use the Software that it will perform substantially as described in the applicable user documentation. If Software fails to meet this warranty we will, at our option and as your exclusive remedy, either (1) return the price paid for the Software or (2) repair or replace the Software.
b. Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
(ii) this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control;
(iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and
(iv) this limited warranty does not apply to Limited Offerings.
c. DISCLAIMER. Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.
a. Limitation. The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid under this agreement for the DayOne Service during the 12 months before the cause of action arose; provided, that in no event will a party’s aggregate liability for any DayOne Service exceed the amount paid for that DayOne Service during the Subscription.
b. EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
c. Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law.
a. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Pro-Vision must be sent to the following address:
3031 Tisch Way
110 Plaza West
San Jose, CA. 95128
Notices to you will be sent to the address that you identify on your account as your contact for notices. Pro-Vision may send notices and other information to you by email or other electronic form.
b. License Transfers and Assignment. You may not assign this agreement either in whole or in part or transfer licenses without Pro-Vision’s consent.
c. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
e. No agency. This agreement does not create an agency, partnership, or joint venture.
f. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.
g. Applicable law and venue. This agreement is governed by the laws of the United States of America.
h. Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this Pro-Vision DayOne Subscription Agreement, (2) the applicable Offer Details, and (3) any other documents in this agreement.
i. Survival. The terms in Sections 1, 2.c., 2.e., 4, 5, 6 and 7 will survive termination or expiration of this agreement.
j. Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of DayOne Services)). This Section will not, however, apply to your subscription payment obligations under this agreement.
k. Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this agreement.
l. Government customers. Government customers should consult with Pro Vision prior to acceptance. By accepting this agreement, you represent that you have complied and will continue to comply with all applicable laws and governmental procurement requirements.
Any reference in this agreement to "day" will be a calendar day. "Acceptable Use Policy" is set forth in the DayOne Services Terms.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.
"Consumption Offering", "Commitment Offering", or "Limited Offering" describe categories of Subscription offers and are defined in Section 2.
"Offer Details" means the pricing and related terms applicable to a Subscription offer, as published in the Portal.
"DayOne Services" means the Pro-Vision DayOne collaboration solution software to which you subscribe under this agreement.
"Portal" means the DayOne Services’ respective web sites that can be found at https://www.day-one.us/, or at an alternate website we identify.
"Subscription" means an enrollment for DayOne Services for a defined Term as specified on the Portal. You may purchase multiple Subscriptions, which may be administered separately, and which will be governed by the terms of a separate Day-One Subscription Agreement.
"Term" means the duration of a Subscription (e.g., 12 months).
DayOne EULA v1.8 Feb 1, 2023