General Terms
Last modified February 6, 2024
1. Subject of the Agreement
Subject to the terms and conditions in this document (“Agreement“), the Customer is entitled to use the ProManage Cloud system hosted by ProManage in its cloud systems (“Service“) by paying service fees. ProManage Cloud application software, which is provided as a service, is an advanced Production Operations Management (MES/MOM) system. The Service is offered to the Customer as different packages from which the Customer may choose services according to its digital transformation level and corresponding needs. For the provision of the Service, application software components may be installed on the Customer’s computer systems. During the term of the Service, the Customer shall also be granted the right to use these software components. Under the Agreement, the Customer shall be granted the right to use the software package it has chosen based on its needs; and any and all copyright and intellectual property rights shall remain with ProManage.
The hardware components purchased along with the Service (e.g. IIoT devices, edge, computer), if any, do not fall under the scope of this Agreement.
The service is hosted and managed on cloud infrastructure.
As the scope of the Agreement is “Software as a Service” (SaaS), the terms “software”, “application”, “service” and “system” are used interchangeably and as synonyms.
Directors, engineers, experts, operators or other similar individuals within the organization of the Customer using the ProManage Cloud service will hereinafter be referred to as “user”.
2. Commencement of Service
- ProManage prepares the system, creates a user authorized with system administration privileges (“Administrator”), and provides the Customer with a secure web address, username, and one-time password. The Customer logs into the system with this user account, and is requested to change its password at the first log-in. The Customer creates other users through this initial user account, and determines their authorizations.
- After logging in with the one-time password and changing the password, no third party, including ProManage’s personnel, can access the Customer’s system. The Administrator’s password may be reset only under certain procedures.
- The Customer is responsible for the security of user account information and all activities carried under the user account, as well as any damages and losses arising therefrom.
- ProManage cannot be held liable for any issues, losses or damages resulting from the Customer’s and/or its users’ non-compliance with these requirements.
- After logging in with the one-time password and changing the password, no third party, including ProManage’s personnel, can access the Customer’s system. The Administrator’s password may be reset only under certain procedures.
- Service term starts with the first log-in.
3. Rights and Obligations of the Parties
- The Service including license to use the software for the service offered, server hardware related to the software on cloud, license to use the database on the cloud, data storage areas and internet connectivity of the servers are provided subject to the terms and conditions of this Agreement.
- Access to the Service is conducted over the internet. Users access the Service through a web browser in the same way they access a website. In order to collect data from the machines, it is necessary to make a connection to the PLCs of machines covered by the Service or to supply and connect additional equipment. The Customer is responsible for the internet connection it will use to access the Service, computer, mobile phone, tablet and similar hardware through which the Service will be used, relevant operating system licenses, connecting the machines to the Service, and if necessary, providing additional hardware and connecting such hardware to the Service in this regard. If the said hardware, related license and services are provided by ProManage or one of its business partners, they will be regulated under a separate agreement. This Agreement only concerns the Service defined under the “Subject of the Agreement” clause and cannot be associated with other agreements unless explicitly required by ProManage.
- ProManage will provide notifications regarding the Service through announcements on the website or by sending electronic mail. The notification will only be served to users with administrator authorization as designated by the Customer. The Customer is responsible for identifying the relevant email addresses to which it wishes to receive the notifications. Designating one or more users as Administrator shall mean that ProManage is given permission to use their email addresses to send notifications. ProManage shall not have any responsibility in case the electronic mails do not reach the Customer.
- ProManage publishes videos and/or documentation in written format on its website regarding the use of the software as a service. The software as a service is a comprehensive Production Management System. The reporting tools include OEE, TEEP, MTTR, MTBF and similar performance indicators related to Lean Manufacturing and other similar methodologies. Although basic concepts are explained in ProManage’s documentation, ProManage is not responsible for education related to these concepts, or how the Customer’s operation may be improved through the use of these concepts and data.
- ProManage shall provide the Customer with support services through Support Portal on its website. ProManage support services regarding system or application issues and financial information requests are answered on a 5×9 basis (Monday to Friday 9:00 am – 6:00 pm CST). The support service language is English. Support services for the systems, hardware or software supplied by the Customer or resolving issues therefrom do not fall within the scope of ProManage’s obligations and responsibilities under this Agreement. In the event that the Customer requests on-site services (e.g., service, support, training, consulting …), these services will be charged separately outside the scope of the Agreement.
- Data in the cloud is stored in a database. The system automatically back-ups the data daily. If the server crashes, and the system needs to be restored from backup files, there might be a short-term loss of data and service interruption. If server crashes and backup files are destroyed, there might be a complete data loss. ProManage shall have no responsibility for damages that arise or may arise from data losses in such cases, which might occur for any reason. In the event that data loss occurs due to ProManage’s gross negligence, ProManage shall compensate the Customer for the damages caused by the gross negligence, ProManage’s liability will be limited in value to one-month of service. No rights or compensation, under any name, may be claimed/asserted against ProManage except for a value equal to one-month of service in the case of ProManage’s gross negligence.
- ProManage carries out continuous research and development activities to provide a better Service. In this respect, ProManage creates new versions of the Service by developing and improving its services. Fixes in connection with the changes to the legislation and operation of the application are also applied to the new versions. These improvements and developments are offered to the Customer free of charge. As the updates must be made for all customers at the same time, the timing of updates is determined by ProManage. ProManage is not obliged to obtain the Customer’s approval prior to the updates, and ProManage has the right to make updates it deems appropriate and whenever it deems fit.
- The Customer cannot lend, rent, transfer, or assign the rights and obligations under this Agreement to third parties and organizations with or without charge. If ProManage identifies any act of non-compliance with this provision, ProManage shall have the right to terminate the Agreement without any warning or notice, and without paying any compensation or entering into any similar obligation. In such case, the Customer is responsible for the total service fee for the period committed under this Agreement; and there is no obligation to refund any advance payment made by the Customer.
- The Customer shall not (i) investigate the websites or other sites associated with the Service for the purpose of infiltrating security measures used by the servers and networks, using the access information provided to it to access the ProManage Cloud System, (ii) scan the systems for infiltration purposes and (iii) carry out any activities that may adversely affect the operability of the system by identifying security vulnerabilities. The Customer shall not make any transaction on the servers or networks that results in unreasonable or disproportionate system load. The Customer cannot use the services for unauthorized and unlawful access to third parties’ computers, user accounts and other networks, or engage in activities that facilitates these behaviors. In such cases, the Customer is responsible for damages incurred by third parties; ProManage has no responsibility for these damages; and ProManage is entitled to terminate the Agreement.
- ProManage reserves the right to enter into agreements with a third party and/or organization to fulfil any or all of its obligations under the Agreement. In such case or in cases of transfer, sale of service provider, ProManage shall ensure the continuity of the Service subject to the service level commitment set out paragraph 4 of section 4 (Limitation of Liability) below.
- As part of the optional features of ProManage Cloud service, components developed by third parties may be included in the System. Each component (software or hardware) may have its own licensing terms (e.g., Edge software package includes OPC Server software, IPC hardware includes Windows 10). These license terms do not in any way suspend, cease or revoke any or all of the terms of this Agreement. These special licensing conditions are considered as an addition to this Agreement. Some of the software components are activated and licensed only if an optional feature is purchased.
- If ProManage detects a process that has a resource intensive or damaging effect on the server systems, ProManage has the right to cease such process or slow it down by lowering its priority.
- The Customer cannot keep any unlawful content or file on the servers. Systems cannot be used for purposes other than the intended purposes.
4. Limitation of Liability
- ProManage takes utmost care to ensure that its software products perform the functions specified in their documentation. ProManage makes no representation and warranty that the Service and its software products are completely flawless, error-free, perfect, or that they fully meet users’ general and/or special needs.
- ProManage cannot be held liable for failure of software or hardware that is not supplied by ProManage, software or database to which ProManage has no copyright, network design or connection errors or other environmental factors (power interruption, etc.) and information and software loss that may arise from user errors.
- The Customer shall use the Application on the systems pursuant to the technical specifications specified in the documentation on ProManage Cloud. In the event that the components provided by the Customer and ProManage Cloud Application do not match, the Customer accepts that ProManage has no material or legal responsibility in this regard, and that ProManage’s liability under this Agreement is limited to ProManage Cloud Service.
- The Service may be accessed on a 24/7 basis. Except for force majeure events, systems will be 99% accessible throughout the year. This service level commitment excludes downtime for scheduled maintenance.
- The Customer acknowledges, agrees and undertakes that, unless otherwise expressly set out in this Agreement, ProManage has no liability to the Customer for any loss of profits or any damages due to the Service even if ProManage has been advised of the possibility of the losses or damages, and ProManage is not obliged to compensate such losses and damages. Without limiting the generality of the foregoing, unless ProManage has acted on gross negligence, ProManage is not responsible for any damages and losses, which the Customer may incur due to failures, errors and interruptions resulting from loss of, or damages to data, delay or non-arrival of data, inaccessibility of information in connection with the interruption of software service (and any other instances arising from interruption of services) or any other damages and losses that may occur as a result by any means. The Customer is responsible for backing up its data at intervals it deems appropriate. ProManage’s liability for damages arising from services provided under this Agreement will not exceed the amount of the service fee for one month that is actually paid by the Customer for ProManage Cloud.
- In case of any legal dispute arising from the use of services purchased by the Customer, or in the event that such dispute results in legal liability, the Customer accepts and undertakes that ProManage has no liability thereof and the Customer is solely responsible for services it purchased and the use of these services. In case third parties incur damages during the Customer’s use of service under the Agreement and third parties assert claims and/or initiate lawsuits against the Customer, the Customer cannot recourse and/or make a claim to ProManage in any way; and the Customer is responsible for any losses resulting therefrom.
- ProManage is not, in any way, responsible for material, immaterial, legal or financial consequences, gains or losses that may arise from the misuse of the Software, the use of Software for illegal works or the use of the Software in violation of applicable laws or any laws that may enter into force in the future.
- Without prejudice to the violations under Law on Intellectual and Artistic Works, ProManage and the Customer agree that any compensation (i.e., financial liability) parties may claim against each other in any dispute arising directly or indirectly from this Agreement is limited to the amount of the service fee for one month that is actually paid by the Customer for ProManage Cloud.
5. Force Majeure
- ProManage shall not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from natural disasters, earthquakes, floods, explosions, landslides, storms and other acts of God, fire, government actions, events of national mobilization, war or attempts of war, strikes, lockouts, acts of terrorism, public movements, sabotage, vandalism, cyberattacks by hackers, declaration of contagious disease by competent authorities at the place of work and/or within the borders of the relevant municipality and other similar situations that are beyond ProManage’s control and prevent or complicate the fulfilment of provisions of Agreement (“Force Majeure“).
- ProManage Cloud System is accessed over the internet. Failure to provide the Service due to interruptions related to services provided by internet/telecommunication infrastructure providers, competent and public authorities and/or other third parties’ acts and/or activities relating to internet network is considered as a Force Majeure event and ProManage shall have no liability therefor.
- Components of the ProManage Cloud Service that are provided over cloud computing infrastructure are subject to the quality level of the cloud infrastructure provider. Issues relating to the level of service quality that may arise from cloud infrastructure provider are considered as Force Majeure events and ProManage shall have no liability therefor.
- In the event of one of Force Majeure events, each party may suspend the provisions of the Agreement by serving a written notice to the other party within fifteen (15) days. In the event that the Force Majeure event that prevents achievement of the objective of the Service lasts longer than sixty (60) days, parties may terminate the Agreement unilaterally or jointly.
- If the Service is partially or completely interrupted or disrupted due to a Force Majeure event, ProManage shall have no liability. However, after the Force Majeure event ends, ProManage shall perform/fulfil services or commitments that were partially performed, or that had not performed on time as soon as possible.
- In any case, the price of the Services performed until the date of Force Majeure event must be paid.
6. Fees, Billing, Payments
- The annual service fee shall be paid in advance. For new Customers, the service term commences when (i) the Customer accesses the system for the first time or (ii) 15 calendar days passes after ProManage provides log-in information to the Customer, whichever comes first; for existing Customers, it commences on the termination date of the previous Service. When the username is sent, the system is ready for the Customer’s use and the server resource is utilized. Therefore, the Parties agree and accept that even if the connection to the Service is not established, it is fair for the service term to commence at the end of the 15-day period. ProManage invoices the Customer on the first day of the service term.
- In the event that the Customer has not renewed the Agreement prior to the expiry of the service term, the Customer’s right to use the Services and ProManage’s obligations under this Agreement shall cease at the expiry of the service term.
- ProManage reserves the right to unilaterally amend the list price of the annual service fees. Changes to the service fees shall not affect the Services that are already paid for.
7. Terms, Assignment and Termination
- This Agreement is effective for the duration of the Service for which a subscription was purchased by the Customer, starting from the date of signature. If the Customer renews this Agreement at the end of the purchased service term, the Service shall continue pursuant to the provisions of this Agreement.
- The cost of the Service is determined on the basis that the Customer shall use the system for years. So, in the event that the Customer terminates the Service before the service term expires, the Customer may not request a refund for the remaining term of service in which the Customer does not receive the service.
- ProManage may terminate this Agreement unilaterally and without compensation, notwithstanding of conditions of time and form, in the event that it is determined that the service provided to the Customer is abused in any way and/or method; or that there are indications of abuse or similar justifiable reasons.
In the event that the Agreement shall be terminated by ProManage, the Customer’s user account may be frozen, or the service provided under this Agreement may be suspended, partially or completely, without any notice. In these cases, ProManage has the right to claim the total Service fee for the term undertaken by the Customer.
Pursuant to this Article, the Customer may not claim any pecuniary or non-pecuniary damages, loss of profit, investment costs, additional costs or any other loss and/or damages or any similar claims from ProManage due to ProManage’s termination of the Agreement. The Customer expressly agrees, accepts and undertakes that the Customer irrevocably waives all claims, demands and litigation rights in this regard.
- ProManage may unilaterally terminate, amend or renew the Agreement in line with current or new laws, regulations, and new obligations imposed by Official Regulatory Agencies.
- ProManage is not liable for storing the data, providing a copy of the data or any similar data processing transactions following the termination of the service term. If the Customer does not renew the Agreement at the end of the service term, the Customer must obtain a copy of its existing data before the termination of its membership. ProManage is not liable for any kind of data loss or any other damage. The Customer accepts, declares, and undertakes that they may not claim any damages or any other payment from ProManage in any form.
8. Privacy and Collection of Personal Data or System Information
- The ownership of all data entered by the Customer and collected from its own systems belongs to the Customer.
- The Software or Support may employ applications and tools to collect Personal Data, sensitive data or other information about the Customer and End Users (including End Users’ name, e-mail address and subscription details), IP address, location, device and browser information. The collection of the Data may be necessary to provide the Customer and End Users with the relevant Software or Support functionalities.
- Access to the system is logged (including user id, IP address, device and browser information). This data may be used for frequency of use of functions, intensity of usage of system resources, traffic load and similar analysis.
- ProManage reserves the right to disclose user information at the request of public authorities conducting an investigation, when required to do so by law.
9. Communication
- The following communication instruments shall be used for notification of all kinds of requests (notification of problems, requests and errors) regarding the ProManage Cloud application.
- The support website shall be accessed directly by clicking the support link in the application.
- Notification to the e-mail address support@promanage.com is sufficient for the requests to be registered officially.
- The address stated by the Customer in this Agreement shall be used for shipments that shall be sent to the Customer by ProManage. Any notification made to this address shall be deemed to have been served, even if the notification has not reached the Customer. Any previous addresses shall be valid unless the changes of information regarding said addresses are notified to the other party in writing. The Customer shall immediately notify ProManage of any possible changes of information regarding its address and other related information.
- The support website shall be accessed directly by clicking the support link in the application.
10. Special Provisions
- Records of ProManage shall be conclusive and valid evidence regarding the Customer’s access to the system and its other transactions.
- Waiver of default, condition or breach of any provision of this Agreement, even if otherwise or of a similar nature, shall not constitute waiver of default, condition or breach of any other provisions of this agreement.
- ProManage’s failure to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. In the event that a court of competent jurisdiction deems any provision of this Agreement invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
- This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Illinois, which law shall prevail in the event of any conflict of the Parties.
SCHEDULE A
SUPPORT AND MAINTENANCE SERVICES
- SUPPORT AND MAINTENANCE SERVICES
1.1 Support and Maintenance Services are included in the SaaS Service subscription in Schedule A and entitle the Customer to the following:
1.1.1 Telephone or electronic support to help the Client locate and correct problems with the Software.
1.1.2 Bug fixes and code corrections to correct Software malfunctions to bring such Software into substantial conformity with the operating specifications.
1.1.3 All extensions, enhancements, and other changes that the Company, at its sole discretion, makes or adds to the Software and which the Company furnishes, without charge, to all other subscribers of the SaaS Service.
1.1.4 Up to 2 dedicated contacts designated by the Client in writing that will have access to support services.
- RESPONSE AND RESOLUTION GOALS
2.1 “Business hours” 09:00 to 18:00 CST, Monday to Friday, except holidays.
2.2 “Fix” means the repair or replacement of a Software component to remedy a Problem.
2.3 “Problem” means a defect in Software as defined in the Company’s standard Software specification that significantly degrades such Software.
2.4 “Respond” means acknowledgement of a Problem received containing the assigned support engineer name, date and time assigned, and severity of assignment.
2.5 “Workaround” means a change in the procedures followed or data supplied by the Client to avoid a Problem without substantially impairing the Client’s use of the Software.
| PROBLEM SEVERITY | RESPONSE GOALS | RESOLUTION GOALS |
| Hardware or network failure at Client site causing Data collection service is not functioning | 2 hours | Company is not responsible for solution, will try to help to find and solve the problem |
| Data collection service is not functioning | 2 hours | 24 hours |
| The production system or application is completely not functioning | 2 hours | 24 hours |
| The production system or application is moderately affected. There is no workaround currently available, or the workaround is cumbersome to use. | 4 hours | 3 business days |
| The production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. | 1 business day | 5 business days |
| Non-critical issues, general questions, enhancement requests, or the functionality does not match documented specifications. | 3 business days | No resolution goals granted. For enhancement requests, no resolution granted. |
- ACCESSING SUPPORT
3.1 The online support center (https://support.promanage.net) is available 24×7 for self-service technical assistance including:
3.1.1 Downloading software updates and patches
3.1.2 Logging tickets and viewing status of previously submitted tickets
3.1.3 Accessing product documentation, technical articles, and FAQs