Pro Care By Coolest
Terms of Service 

Pro Care By Coolest is a Division of Coolest Refrigeration LLC. 

 

All Hardware is under our warranty, any issues, please let us know and we will replace your equipment. (Return of equipment required.) 

Negligent physical or water damages to hardware is not covered and you will be charged for replacement.

 

Replacement Cost : 

Temperature & Humidity Sensors : $200

WIFI Gateway : $500

 

The Hardware and Software are being Leased to you by Pro Care By Coolest. THIS IS NOT A PURCHASE. You are liable for the return of all of the hardware leased to you if you choose to cancel your subscription. If you cancel your subscription and do not return leased equipment within 30 days, you will be charged for the replacement cost using the credit card on file or if payment fails using a different method of payment. Free return shipping will be provided for you. 

Return Equipment Address:

Pro Care By Coolest

212 Millstone River Rd Belle Mead NJ 08502

For Return Shipping Labels please submit request to Support@ProCareByCoolest.com

 

1. Your Acceptance

Thank you for choosing to use “ProCare By Coolest” products and services.

 

This agreement (Agreement) governs any ProCare by Coolest products and services (Services) provided to you through the ProCare by Coolest website ProCarebyCoolest.com, (ProCare by Coolest Platform) or that ProCare by Coolest otherwise provides or makes accessible to you and the seats (being the named individual users of the Services) that you nominate (End Users). This Agreement does not apply if you have executed a hard copy agreement with ProCare by Coolest for the provision of the Services.

This Agreement is between ProCare by Coolest Pty Ltd (ProCare by Coolest) and the person or entity agreeing to these terms (you).

You warrant that you are over the age of eighteen and have the power and authority to enter into and perform your obligations under this Agreement. If you enter this Agreement on behalf of your company, then “you” in the remainder of this Agreement means your company, and you warrant that you are properly authorized to bind your company to this Agreement.

You agree to the terms of this Agreement when you submit an Order, create an account on the Site or on the ProCare by Coolest Platform, or click on the “I agree to the Terms of Service” button that is presented to you at the time of submitting your Order. If you do not agree with this Agreement, do not click the “I agree to the Terms of Service” button and stop using and uninstall the Services. The Agreement becomes binding on the date that ProCare by Coolest accepts your Order or first makes the Services available to you, whichever is earlier (Commencement Date).

 

2. Scope

This Agreement comprises of:

these terms and conditions (General Terms; Terms of Service);

the terms specified in the relevant order form completed pursuant to section (12) (Order);

the terms applicable to each Service set out in product modules in Part B of this Agreement (Product Modules);

the Privacy Policy, Acceptable Use Policy, Site Terms and Conditions, and any other ProCare by Coolest policies and attachments posted on the Site or ProCare by Coolest Platform, each of which may be modified from time to time (ProCare by Coolest Policies).

If any of the terms listed in this section (2)(a) are inconsistent, the terms first listed will have priority.

 

3. Services

The Services include:

all services, technology, data, information, programs, material, and other content that ProCare by Coolest makes accessible to you through the Site or the ProCare by Coolest Platform, including on any desktop, mobile telephone, or handheld device (Device) owned or controlled by you or your End Users (Subscription Services); and

any other services that ProCare by Coolest otherwise provides to you, but excludes:

data, information, templates, content, code, video, images, or other materials or information of any type that you upload to the ProCare by Coolest Platform, or otherwise provide to ProCare by Coolest in connection with the Services (Your Data);

Your Modifications (as defined in section (8)(a));

shared materials created by ProCare by Coolest, you or other users of the Services that are published or made accessible through the Site and ProCare by Coolest Platform, including in the “Public Library” (Shared Materials); and

Sensor Hardware supplied by ProCare by Coolest in accordance with the Sensor Product Module.

ProCare by Coolest reserves the right to make changes to the Subscription Services at its sole discretion from time to time, including the functionality, performance, user interface, usability, and the service description published on the Site or that ProCare by Coolest provides to you (Service Description), and you agree that this Agreement will apply to any changes or updates to the Subscription Services. Subject to ProCare by Coolest’s obligations under existing Orders, ProCare by Coolest may discontinue any Service in whole or part at any time without notice or liability to you.

ProCare by Coolest will make the Subscription Services available to you and your End Users solely for your internal business operations during the subscription period specified in your Order (Subscription Term) and according to any usage restrictions specified in the applicable Order and Product Module.

Unless permitted by law or as otherwise expressly permitted in this Agreement, you must not (nor may you authorize any third party to):

rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Subscription Services to a third party;

reproduce, modify, adapt, or create derivative works of, the Subscription Services or remove or tamper with any disclaimers or other legal notices in the Subscription Services;

reverse engineer, disassemble, decompile, transfer, exchange, or translate the Subscription Services or otherwise seek to obtain or derive the source code or API;

incorporate the Subscription Services into any service that you provide to a third party; or

use the Subscription Services to provide services, or to create a service that competes with the Subscription Services.

You must promptly notify ProCare by Coolest in writing of any breach of the above conditions of use.

You are solely responsible for ensuring that your Devices and systems are compatible with the Subscription Services and meet any minimum requirements specified in the applicable Service Description.

 

4. No-Charge Services

ProCare by Coolest may offer certain Services to you at no charge, including free accounts, trial use, and access to pre-release and beta products (No-Charge Services). Your use of No-Charge Services is subject to any additional terms that ProCare by Coolest specifies and is only permitted for the period designated by ProCare by Coolest, or if no such period is designated, 30 days. ProCare by Coolest may terminate your right to use No-Charge Services at any time and for any reason in ProCare by Coolest’s sole discretion, without liability to you.


 

5. Your Accounts

You must register an account to access or receive Services and to receive notices and information from ProCare by Coolest (Customer Account).

All End Users must establish a named account on the ProCare by Coolest Platform (End User Account).

You may specify one or more administrators who may elect to have password-protected rights to access an administrative account(s) (Admin Account(s)) to administer the Subscription Services and End User Accounts.

You are responsible for your Customer Account and all End User Accounts and Admin Accounts under your Customer Account (together, Your Accounts). Your responsibilities include:

maintaining the confidentiality of the passwords associated with each of Your Accounts;

ensuring that only those individuals authorized by you have access to Your Accounts; and

ensuring that all activities that occur in connection with Your Accounts comply with this Agreement.

 

6. Intellectual Property Rights

ProCare by Coolest and its licensors have and retain all rights, title and interest, including all intellectual property rights, including copyright, trade or service marks, designs, patents, rights in circuit layouts, domain names, and trade names anywhere in the world (Intellectual Property Rights) in and associated with the Services.

You and your licensors retain ownership of all rights, including Intellectual Property Rights, in Your Data.

You grant to ProCare by Coolest or must procure the grant to ProCare by Coolest of, a non-exclusive, worldwide, irrevocable, royalty-free license (including the right to sublicense) to use and develop the Intellectual Property Rights in Your Data to the extent required to:

enable ProCare by Coolest to exercise its rights and discharge its obligations under this Agreement, including to provide or support the Services, and to offer to provide you with any other goods or services (including other products); and

generate aggregated data sets, reports, and analysis relating to technical data about customer use of the Subscription Services in a form that is anonymized and does not identify you or any individual (Aggregated Data). You acknowledge and agree that ProCare by Coolest will own all Intellectual Property Rights in Aggregated Data.

ProCare by Coolest may use Aggregated Data to analyze, improve, support, and operate the Services and for related internal business purposes.

 

7. Integration with Third-Party Products

You may choose, at your sole discretion, to integrate the Services with third-party products or services (Third Party Products). If you choose to use any Third Party Products in connection with the Services, ProCare by Coolest may provide such third parties access or use of Your Data to the extent required for the interoperation of the Services with the Third Party Product. Your use of any Third Party Product will be subject to the applicable agreement between you and the relevant third-party provider. ProCare by Coolest is not responsible for any access to or use of Your Data by such third party providers. ProCare by Coolest DISCLAIMS ALL LIABILITY FOR ANY THIRD-PARTY PRODUCTS AND FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OF THIRD-PARTY PRODUCTS.

 

8. Your Data and Your Modifications

To the extent permitted by the functionality provided by a Subscription Service, you may modify a template, training course, or incident workflow in the Subscription Services to develop customizations and additional features of a template, training course, or incident workflow (Your Modifications).

If you elect to publicly share any of Your Data or Your Modifications with ProCare by Coolest or other users through the functionality provided by the Subscription Services (Your Shared Materials), you grant ProCare by Coolest and each other user that downloads Your Shared Materials a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license (including the right to sublicense) to use, develop, modify, reformat, publish, distribute to third parties, and exercise any other Intellectual Property Rights you have in Your Shared Materials.

You warrant that Your Data and Your Modifications (including any of Your Shared Materials):

are not unlawful, defamatory, offensive, obscene, harmful, of bad taste, or inappropriate;

comply with the ProCare by Coolest Policies, including the Acceptable Use Policy;

are not false, misleading, or inaccurate;

do not infringe third party rights (including Intellectual Property Rights);

comply with all applicable laws; and

are not infected with viruses or any other malicious computer code, files, or programs.

You acknowledge and agree that ProCare by Coolest may, in its absolute discretion, remove, delete, or modify any of Your Data or Your Modifications (including any of Your Shared Materials) from the Subscription Services, Site, and ProCare by Coolest Platform.

You must indemnify, defend and hold ProCare by Coolest and its affiliates, service providers, officers, employees, contractors, and customers (those indemnified) harmless from and against all claims, costs, damages, losses, liabilities, and expenses (including legal fees) arising out of or in connection with any claim brought against those indemnified by a third party relating to Your Data or Your Modifications (including any of Your Shared Material), including but not limited to any claim relating to infringement of law or the rights of a third party (including Intellectual Property Rights), or representations or warranties that you make about Your Data, Your Modifications or the Services. ProCare by Coolest agrees to provide: (i) prompt written notice to you of any such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of ProCare by Coolest at your expense.

 

9. Downloading Shared Materials

If you download Shared Materials, to the extent permitted by law:

your use of Shared Materials is at your own risk;

ProCare by Coolest excludes all liability to you and any third party in respect of your use of Shared Materials; and

it is your responsibility to assess (and if necessary, obtain professional advice on) the suitability of Shared Materials for your purposes and any modifications required to meet those purposes.

10. Confidentiality

In this Agreement, Confidential Information of a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors, or suppliers, but does not include any Shared Materials, or any other information which is in the public domain other than through a breach of confidence.

Each party (Recipient) must keep confidential and not disclose to any third party Confidential Information of the other party, with the exception that a Recipient may disclose such Confidential Information:

to:

a third party with the prior written consent of the other party; and

the Recipient’s, or affiliates or subsidiaries of the Recipient’s, officers, agents, professional advisers, employees, contractors, subcontractors, auditors, and insurers; and provided that such recipients are subject to confidentiality obligations no less stringent than under this Agreement concerning that Confidential Information; and

where the Recipient is legally compelled to do so by any government or any governmental, administrative, regulatory, fiscal or judicial body, department, commission, authority, tribunal, or agency, provided that it first uses commercially reasonable efforts to give the other party written notice before disclosure if permitted by law.

Each party must only use the Confidential Information of the other party for the purpose for which it was disclosed in connection with this Agreement.

 

11. Privacy

In this section, Personal Information has the meaning given under the Privacy Act 1988 (Cth), or the meaning given to any similar term under other applicable privacy or data protection laws that are used to describe information relating to an individual.

ProCare by Coolest will take reasonable steps to ensure that Personal Information within Your Data is secure from unauthorized access, use or disclosure and will treat any Personal Information collected from you in accordance with the ProCare by Coolest Privacy Policy.

You are responsible for ensuring that you have obtained all individual consents required for ProCare by Coolest to provide the Services in respect of any Personal Information contained within Your Data, including from your End Users.

Where (i) the EU General Data Protection Regulation 2016/679 (“GDPR“) and/or (ii) the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the GDPR apply to any of Your Data, the terms of Appendix 1 (Data Protection Compliance) and Appendix 2 (Data Processing Agreement) will apply.

Where the Privacy Act 1988 (Cth) applies to any of Your Data, the terms of Appendix 3 will apply.

Other than as expressly noted in this section (11), you acknowledge that:

the Services have not been designed to meet the requirements of laws or standards that may apply to you in respect of Your Data, including without limitation, the Health Insurance Portability and Accountability Act 1996, the Payment Card Industry Security Standards, or any other law or standard applicable to the handling, storage, processing, transfer, security or location of Your Data in any jurisdiction; and

it is your responsibility to satisfy yourself that your use of the Services will allow you to meet any legal obligations applicable to you in respect of Your Data, and ProCare by Coolest disclaims all liability for your non-compliance with any such laws or standards arising from your use of the Services.

 

12. Orders

To use the Services you must complete an Order by either:

completing the online order page (Online Order) located on the Site which contains details of:

the Services being ordered;

the applicable fees (Fees);

the number of paid End User Accounts that will form part of your organization in respect of Subscription Services (if applicable);

the Subscription Term applicable to any Subscription Services;

the applicable billing details, and the currency in which you will be billed; and

if applicable, details of any Sensor Products or other products made available by ProCare by Coolest in the future you wish to order; or

execute a paper-based quote or order form (Quote/Order Form) provided by ProCare by Coolest which sets out the relevant information in section (12)(a).

 

13. Billing and Payment

You must pay all Fees for the Services in accordance with the rates and currency set out in the applicable Order(s). Other than where expressly provided for, under this Agreement, all Fees are non-refundable, non-cancellable, and non-creditable.

You will be billed the Fees in accordance with the Order as follows:

for Subscription Services, you must select one of the following billing cycle options:

a Monthly Plan, in which case you will be billed the applicable Fees monthly in advance; or

an Annual Plan, in which case you will be billed the applicable Fees annually in advance; or

for Services other than Subscription Services, you will be billed the applicable Fees in accordance with the payment milestones specified in your Order, or if none are specified, in advance upon submitting the relevant Order. Services other than Subscription Services may be charged on a “fixed-fee” or “time and materials” basis, as specified in the relevant Order.

Your Order and any other amounts owing to ProCare by Coolest will be billed using one of the following methods (as specified in your Order):

by direct debit of your credit card or debit card (Direct Debit), in which case you authorize ProCare by Coolest to debit you in the month before the commencement of the annual or monthly billing cycle (as applicable);

by issuing an invoice in accordance with the billing cycle or payment milestones specified in your Order (Invoiced Payments). You must pay any Invoiced Payment within thirty (30) calendar days after the date of invoice; or

by such other forms of payment that ProCare by Coolest makes available on the Site, which may be subject to additional terms and conditions.

If you dispute any invoice or charge that ProCare by Coolest has billed you (acting reasonably and in good faith) you must notify ProCare by Coolest of the dispute without unreasonable delay.

You are responsible for any duties, customs fees, or taxes (other than ProCare by Coolest’s income tax) associated with the supply of the Services or any other goods or services provided by ProCare by Coolest to you, including any VAT, GST, or other applicable sales tax, and any related penalties or interest (Taxes), and you will pay ProCare by Coolest for the Services without any withholding for Taxes. If ProCare by Coolest is required to collect or pay Taxes, the Taxes will be invoiced to you. You must provide ProCare by Coolest with any information ProCare by Coolest reasonably requests to determine whether ProCare by Coolest is obliged to collect Taxes from you, including your relevant Tax identification number.

 

14. Warranties and Limitation on Liability

ProCare by Coolest warrants that:

Subscription Services (other than No-Charge Services) will conform in all material respects with the applicable Service Description for the duration of the Subscription Term; and

ProCare by Coolest will use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses, or similar harmful materials (Malicious Code) into the Services. To avoid doubt, ProCare by Coolest is not responsible for any Malicious Code introduced by third parties, or by you or your End Users.

Provided that you notify ProCare by Coolest in writing of any non-compliance under this section (14)(a) promptly after becoming aware of such non-compliance, ProCare by Coolest will use commercially reasonable endeavors to correct the non-compliance within a reasonable period. If ProCare by Coolest has not remedied the non-compliance by the date that is forty-five (45) days after your written notice, either party may terminate the affected Services.

THIS SECTION (14)(a) CONSTITUTES YOUR EXCLUSIVE RIGHTS AND REMEDIES, AND PROCARE BY COOLEST’S SOLE LIABILITY, IN CONNECTION WITH THE WARRANTIES IN THIS SECTION (15)(a). YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF WARRANTIES REQUIRED BY STATUTE, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

Except as expressly stated in this Agreement or required under any applicable law, the Services and any other goods or services provided by ProCare by Coolest to you are provided on an “as is” basis, and ProCare by Coolest does not make any representation or warranty (express or implied) in respect of the Services or any other goods or services provided by ProCare by Coolest to you, including, without limitation, any implied warranty of merchantability, of fitness for a particular purpose, that operation of the Services will be uninterrupted or error-free, that all defects will be corrected, or that ProCare by Coolest will maintain Your Data without loss or corruption.

To the maximum extent permitted by law, in no event will ProCare by Coolest be liable to you or any third party in connection with this Agreement, whether in contract, tort, equity, statute, or otherwise for:

your misuse of the services, acts, or omissions of your personnel;

Service outage or interruption, or any damage or losses, arising from networks or websites outside of ProCare by Coolest’s control;

any injury, damage to property, or loss to any person in relation to your use of the Services;

subject to section (11), breach of any law applicable to your business activities, including but not limited to any work health and safety or food safety law, in connection with your use of the Services; or

loss of profits, loss of revenue, loss of anticipated savings, loss of use, loss or corruption of data, costs of delay or procurement of substitute or replacement goods and services, business interruption, failure of security mechanisms, loss of goodwill, and any other form of indirect, incidental, special or consequential or punitive damages.

To the maximum extent permitted by law, in no event will either party’s aggregate liability for any claims in connection with this Agreement exceed the total fees paid by you under this Agreement during the twelve months immediately before the event giving rise to the liability.

 

15. IP Indemnity

Subject to section (15)(c), ProCare by Coolest will defend you against any third party claim alleging that the Subscription Services infringes any copyright or any patent (a “Claim”), and will indemnify you against any damages and costs finally awarded by a court of competent jurisdiction or any settlement amounts agreed in writing by ProCare by Coolest, provided that you provide ProCare by Coolest:

prompt written notice of any such claim;

the exclusive right to control and direct the investigation, defense, or settlement of such claim; and all reasonably necessary cooperation and assistance in the defense and investigation of the Claim at ProCare by Coolest’s expense.

In the event of a Claim, ProCare by Coolest may, in its sole discretion:

procure the right for your continued use of the Subscription Services in accordance with this Agreement;

replace the Subscription Services with a similar service with materially equivalent functionality; or

terminate your Order in respect of the Subscription Services affected by the Claim and refund any prepaid, unused fees in respect of the terminated Subscription Services.

The indemnity obligation in this section (15) will not apply to the extent that any Claim arises:

in connection with your use of No-Charge Services;

as a result of misuse of the Subscription Service or use of the Subscription Service with any third party data (including any Shared Materials), or in combination with any Third Party Products other than that for which the Subscription Services were designed or provided;

as a result of modification to the Service made by any party other than ProCare by Coolest or its subcontractors; or

in connection with circumstances covered by your indemnification obligations under section (8)(d).

THIS SECTION (15) CONSTITUTES YOUR EXCLUSIVE RIGHTS AND REMEDIES, AND PRO CARE BY COOLEST’S SOLE LIABILITY, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SUBSCRIPTION SERVICES.

 

16. Term and Renewal

This Agreement commences on the Commencement Date and expires when all Subscription Terms have expired, and all other orders have been completed, unless otherwise terminated in accordance with this Agreement (Term).

Unless otherwise set out in the relevant Order, each Subscription Term will automatically renew for periods equal to the initial Subscription Term at the then-current rates unless:

you elect not to renew your Subscription Term by providing written notice to ProCare by Coolest at least 30 days before the expiry of the then-current Subscription Term, in which case your subscription will expire at the end of the then-current Subscription Term; or

ProCare by Coolest provides you notice that the Subscription Term will not renew at any time before the expiry of the then-current Subscription Term, in which case your subscription will expire at the end of the then-current Subscription Term.

 

17. Termination and Suspension

You may terminate Subscription Services at any time by following the online process specified on the Site for cancelling your Subscription Term. If you choose to terminate this Agreement in accordance with this clause, you will not be entitled to any credits or refunds as a result of such termination.

Either party may terminate this Agreement in whole or part, including any particular Order(s), immediately upon providing notice to the other party if:

the other party is in material breach of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach; or

if the other party ceases to operate, has an administrator appointed, enters a deed of company arrangement or other forms of administration involving one or more of its creditors, is subject to an order that it be wound up, declared bankrupt, or that a liquidator or receiver be appointed, or otherwise becomes insolvent or is unable to meet its financial obligations.

ProCare by Coolest may suspend the Services (including any of Your Accounts) immediately without providing you notice, or terminate this Agreement in whole or part, including any particular Order(s), immediately upon notice to you, if:

you are in material breach of this Agreement more than two times during the Term notwithstanding any cure of such breaches;

you have failed to pay any Fees within sixty (60) days after the relevant due date;

you infringe ProCare by Coolest’s Intellectual Property Rights; or

your use of the Services breaches any applicable law or any of the ProCare by Coolest Policies.

If ProCare by Coolest suspends your use of the Services pursuant to its rights under this Agreement:

ProCare by Coolest will continue to charge you Fees during the suspension period and you must pay any outstanding Fees before ProCare by Coolest resuming the provision of the Services; and

ProCare by Coolest may, in its sole discretion, refuse to resume the provision of the Services until it is satisfied that you have cured the breach which caused the suspension to ProCare by Coolest’s reasonable satisfaction.

 

18. Consequences of Termination

Upon the date that this Agreement or any Order expires or is terminated, then:

subject to any further access to the Subscription Services granted by ProCare by Coolest under section (18)(b)(ii), you and your End Users must cease all access and use of the relevant Subscription Services, Your Modifications, and any Shared Materials;

if the Agreement or any Order is terminated:

by you for ProCare by Coolest’s breach, then ProCare by Coolest will refund any prepaid, unused Fees that relate to the terminated Subscription Services; or

by ProCare by Coolest for your breach, then you must pay to ProCare by Coolest all outstanding Fees due for the remaining duration of any Subscription Term, which will become immediately due and payable upon termination;

you must delete any software or other materials that ProCare by Coolest has provided to you, or made accessible for download by you, for use in connection with the Services (including any Shared Materials) from any Devices; and

you must return, or if requested by ProCare by Coolest, destroy all of ProCare by Coolest’s Confidential Information in your possession or control and provide written certification to ProCare by Coolest that you have done so.

Within thirty (30) days after the effective date of expiry or termination of this Agreement, you must notify ProCare by Coolest if you would like Your Data returned to you or deleted. If you notify ProCare by Coolest that you elect to have Your Data:

deleted (or fail to provide ProCare by Coolest notice of your election), then ProCare by Coolest will delete Your Data by removing pointers to it on ProCare by Coolest’s active and replication servers and overwriting it over time; or

returned, ProCare by Coolest will, at your election, use commercially reasonable endeavors to deliver Your Data to you, or provide you access to the relevant Subscription Service (other than a No-Charge Service) to access Your Data for a period of up to 30 days following the date of termination or expiry provided that you continue to pay ProCare by Coolest the then-current rates for the applicable Subscription Services in respect of that period.

The following provisions will survive any termination or expiration of this Agreement: sections (8)(c), (8)(d), (9), (10), (13), (14), (15), (18), (20) and any other sections which by intent or meaning have validity beyond termination or expiration of this Agreement.

 

19. Amendments

ProCare by Coolest may update or modify the terms of this Agreement from time to time, including the ProCare by Coolest Policies and any other referenced documents (including the Service Descriptions) to respond to changes in ProCare by Coolest’s products, services, business, or as required by law, by giving notice to you. If an update or modification to the terms of this Agreement materially reduces your rights, you may terminate this Agreement upon providing notice to ProCare by Coolest within 30 days after the date of ProCare by Coolest’s notice to you under this section, with such termination to be effective on the date of your notice or the effective date of the update or modification, whichever is later.

 

20. General

If any provision of this Agreement is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of this Agreement will be construed in a manner as to give the greatest effect to the original intention of this Agreement.

The failure of either party to exercise any right provided in this Agreement in any instance will not be deemed to be a waiver of such right.

Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

Other than in respect of an obligation to pay any Fee or other amount, neither party will be liable for non-performance or inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, pandemic, riot, labor condition, governmental action, power interruption, telecommunication, data, and Internet disturbance) that was beyond the party’s reasonable control (Force Majeure Event).

Your use of any website or software that is not provided by ProCare by Coolest to access or download the Services will be governed by the terms and conditions applicable to that website or software. ProCare by Coolest is not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Service.

Any notices to you may either be posted on the Site or ProCare by Coolest Platform, or given in writing (which may be by email) to the address last notified by you to ProCare by Coolest. Any notices to ProCare by Coolest and any questions, concerns, or complaints relating to the Services must be in writing and addressed to:

info@procarebycoolest.com.

You agree to use your commercially reasonable endeavors to resolve any dispute arising out of or relating to this Agreement with ProCare by Coolest prior to resorting to any external dispute resolution process or court proceedings.

This Agreement, and any rights granted hereunder, must not be transferred or assigned by either party (assigning party) without the prior express written consent of the other party, except:

to a third party participating in a merger with, or acquisition of the assigning party; or

in respect of ProCare by Coolest, to any of ProCare by Coolest’s affiliates or subsidiaries.

This Agreement contains the entire understanding between the parties regarding the subject matter of this Agreement. To avoid doubt, resellers of the Services are not authorized to modify the terms of this Agreement or make any representations, undertakings, or other legally binding commitments on behalf of ProCare by Coolest.

 

Appendix 1 (GDPR – Data Protection Compliance)

In this Appendix and Appendix 2 (GDPR – Data Processing Agreement):

Customer Personal Data means any personal data which ProCare by Coolest (or its sub-processors) processes on your behalf as a processor in the course of providing Services.

Data Protection Laws mean the EU Data Protection Laws and the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the EU Data Protection Laws in relation to the processing of personal data.

EU Data Protection Laws mean, the GDPR and any national laws which implement, supplement or replace the same from time to time.

Model Clauses means contractual clauses that have been approved for use by the relevant supervisory authorities under applicable EU Data Protection Laws to enable the lawful transfer of personal data to a country or organization that would otherwise not be regarded as having adequate safeguards for personal data (which as at the date of this Agreement include the controller to processor terms approved by Commission Decision C(2010)593).

Security Incident means a breach of ProCare by Coolest’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data.

Personal data, consent, controller, processor, the data subject, and processing mean those concepts, roles, and activities as defined in the applicable EU Data Protection Laws.

ProCare by Coolest is the controller in respect of personal data, such as account registration details, that we collect directly from users of the Services (End Users) and users of No-Charge Services, and which we use for the purposes of our business.

You are the controller and we are the processor in respect of any other personal data (including within Your Modifications) that is uploaded by End Users and/or users of No-Charge Services including data, templates, information, content, code, video, images, or other material of any type (Materials), or which is provided by your administrators (see Section 5 above).

To the extent that the Services and/or Non-Charge Services comprise the processing of personal data where we are the processor and you are the controller:

you will comply with the requirements of the Data Protection Laws as the same applies to you as controller of the personal data; and

the provisions of Appendix 2 (Data Processing Agreement) to these Terms shall apply

ProCare by Coolest will make available our Privacy Policy at our website and where you provide us with personal data in connection with the Agreement where we will act as the controller (for example where you provide contact details for use in administering the Agreement), you agree to ensure that these individuals are provided with a copy of our Privacy Policy. Where we are a processor and not a controller, it is your responsibility to ensure that in accordance with relevant Data Protection Laws:

There is a lawful basis for the collection and processing of personal data; and

You have provided an appropriate privacy policy to the End Users and other data subjects.

Appendix 2 (GDPR – Data Processing Agreement)

General

The provisions of this Appendix form part of this Agreement to the extent that section (11)(d) of the General Terms applies.

 

Details of Data Processing

Subject matter: The subject matter of the data processing under this Data Processing Agreement is the processing of Customer Personal Data in connection with the performance of the Agreement

Duration: As between, you and ProCare by Coolest the duration of the data processing under this Data Processing Agreement are determined by you, subject to the other provisions of the Agreement.

Purpose: The purpose of the data processing under this Data Processing Agreement is the provision of the Services under the Agreement.

Nature of the processing: data hosting, storage, and such other services as are described in the Agreement.

Type of Data: Customer Personal Data uploaded to the Services under your accounts.

Categories of data subjects: The data subjects may include your customers, employees, suppliers, and end-users.

Terms of Data Processing

Where ProCare by Coolest acts as the processor of personal data on your behalf, ProCare by Coolest shall:

process personal data only on your reasonable documented instructions unless required to do so by law; in such a case, ProCare by Coolest shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. You acknowledge and agree that your final and complete instructions regarding the processing of Customer Personal Data are set out in this Agreement. Any additional or alternate instructions must be agreed in writing by the parties (and ProCare by Coolest will be entitled to charge a reasonable fee to cover any costs incurred in complying with them);

ensure that persons authorized to process the personal data on our behalf have committed themselves to confidentiality obligations or are under an appropriate statutory obligation of confidentiality;

implement appropriate organizational and technical measures to ensure a level of security for the personal data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the personal data.

1. Privacy

The provisions of this Appendix 3 apply to the extent that section (11)(e) of the General Terms applies.

You are responsible for compliance with the Privacy Act 1988 (Cth) (Privacy Act) with respect to any Personal Information contained within Your Data that you use in connection with the Services. You must ensure that you obtain all necessary consents from relevant individuals for the use of the Personal Information contained within Your Data with the Services to the extent required for ProCare by Coolest to provide the Services to you.

Other than were arising from a ProCare by Coolest breach of this Agreement, you must indemnify, defend and hold ProCare by Coolest and its affiliates, service providers, officers, employees, contractors, and customers (those indemnified) harmless from and against all claims, costs, damages, losses, liabilities, and expenses (including legal fees) arising as a result of any breach of the Privacy Act relating to your collection, use, storage, processing or disclosure of any Personal Information contained within Your Data in connection with the Services.

ProCare by Coolest agrees to only use Personal Information contained within Your Data to exercise its rights and perform its obligations under this Agreement.

Pro Care By Coolest reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms. Please check these Terms periodically for changes.