1.1 The App will provide you with the ability to: Create a custom budget and view a month-to-date profit and loss (P&L) statement alongside that budget, with available sales, expense, invoice, labor, and integration features depending on the customer’s subscription and connected systems.

1.2 Developer grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (defined below) of this Agreement to use the App solely for your internal business purposes. You will not otherwise distribute, lease, rent, host, sublicense, transfer, sell, export, modify, reverse engineer, decompile, copy, benchmark, create derivative works from, or attempt to derive the source code for the App. This license does not grant you any rights to Developer's (or any other third party's) trademarks, service marks, logos, trade dress, proprietary, or other intellectual property unless provided with the App. Developer reserves to itself (or applicable third parties) all right, title, interest, and license (express or implied) to the App that are not specifically granted to you under this Agreement. You will preserve and display any proprietary notices, markings, or branding associated with use of the App.

1.3 The App may update automatically from time to time, and you may be required to accept these updates to continue using the App. Developer may perform maintenance on the App, which may result in service interruptions or delays from time to time. Developer may not support older versions of the App. You are solely responsible for obtaining all equipment and services (for example, Internet connectivity) necessary to access and use the App.

You will pay the Developer a monthly fee for your use of the App, which will be automatically collected through the payment method you select during setup for the App. You are responsible for payment of all sales, use, excise, or similar taxes (excluding taxes based on the Developer's income) imposed by federal, state, or local tax authority. You must notify the Developer of any billing errors within 120 days from when an error appears on your invoice, after which you release the Developer from all liability for Losses (defined below) resulting from these errors.

This Agreement commences when you accept or otherwise download, install, copy, or use the App; and will continue month-to-month until terminated (this period of time is the Agreement's Term).

4.1 Developer may promptly suspend or terminate your use of the App if (1) you violate this Agreement's terms; (2) Developer believes your use of the App may damage its reputation or intellectual property rights; (3) Developer suspends or terminates its agreement(s) with any third party involved in providing the App; (4) you materially exceed usage limits disclosed to you in writing or through the App; (5) you experience a bankruptcy or insolvency event; or (6) you are using the App for any fraudulent, illegal, or unauthorized purpose, or engage in willful misconduct with respect to use of the App.

4.2 You may terminate this Agreement at any time and for any reason (without cause) by providing notice to Developer. Your termination will be effective at the end of the then current month or billing period in which you give notice. You will not receive a refund for the billing period in which you terminate this Agreement, except as otherwise provided in an applicable written agreement, promotion, or the Proactive P&L 90-Day Money-Back Guarantee described in Section 4.4.

4.3 Cancellation Policy

Customers may request cancellation of their Proactive P&L subscription at any time by submitting a written cancellation request to Proactive P&L by email at support@fobesoft.com.

The cancellation request should include sufficient information for Proactive P&L to identify the customer account and verify the request.

Cancellation requests will be processed in accordance with the customer's applicable subscription agreement, billing cycle, and account terms.

Customers remain responsible for any charges, balances, or payment obligations incurred prior to the effective cancellation date.

Payments already made are non-refundable unless otherwise specifically provided for under an applicable written agreement, promotion, or the Proactive P&L 90-Day Money-Back Guarantee.

Proactive P&L may contact the customer after receiving a cancellation request to verify the account, confirm the request, and communicate the effective cancellation date.

4.4 90-Day Money-Back Guarantee Terms and Eligibility

The Proactive P&L 90-Day Money-Back Guarantee is available to eligible new customers who actively participate in the onboarding and implementation process during the applicable 90-day period.

To remain eligible for the guarantee, customers must:

• Provide Proactive P&L with access to the restaurant’s POS system within 48 hours of signup or the initial request for access
• Upload invoices to Proactive P&L on a weekly basis
• Participate in scheduled weekly meetings with their dedicated Profit Consultant
• Remain actively engaged with the Proactive P&L team throughout the 90-day period
• Complete reasonable onboarding and implementation steps requested by Proactive P&L so the platform can be properly implemented and evaluated

Customers who meet these requirements and determine that Proactive P&L is not the right fit may request a refund under the 90-Day Money-Back Guarantee within the applicable guarantee period.

Eligibility will be reviewed based on completion of the participation requirements above. Customers who do not provide required system access, upload invoices consistently, participate in scheduled meetings, or otherwise complete the required implementation steps may not qualify for the guarantee.

The 90-day guarantee period begins on the date the customer’s paid subscription starts. To request a refund, an eligible customer must email support@fobesoft.com within that 90-day period and identify the customer account. The guarantee covers subscription fees paid for the initial 90-day period and the onboarding fee paid at signup. Taxes and third-party charges are excluded unless a separate written offer expressly includes them. Proactive P&L will review timely claims against the participation requirements above and, if approved, issue a refund to the original payment method within 30 days, subject to payment-processor timing. This guarantee does not limit any non-waivable rights under applicable law.

5.1 Neither of us will disclose non-public information about the other's business; including, without limitation, the terms of this Agreement, technical specifications (whether related to the App or otherwise), customer lists, or information relating to a party's operational, strategic, or financial matters (together, Confidential Information). Confidential Information does not include information that (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser's Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each of us will implement and maintain reasonable safeguards to protect the other's Confidential Information.

5.2 Neither of us may disclose the other's Confidential Information except (1) to our respective directors, officers, employees, representatives, contractors, professional advisers, and service providers who are bound by appropriate confidentiality obligations and need to know it in order to perform our obligations under this Agreement; (2) in response to a subpoena or court order; or (3) as required by applicable law, rule, or regulation.

5.3 Developer may process Customer Data and Personal Information solely to provide and support the App and for other purposes permitted under Sections 9 and 10 and applicable Laws (defined below). Developer may use properly aggregated or de-identified information for research, development, and service improvements, provided that such use does not identify Customer or an individual and complies with applicable Privacy Laws. Nothing in this Section authorizes the use of Customer Data or Personal Information for Developer’s independent commercial purposes in violation of Section 9. Information Developer collects about you or your consumers is subject to Developer's privacy policy, which is accessible at https://www.proactivepandl.com/privacy-policy

5.4 You may provide, or Developer may invite you to provide, comments or ideas about the App (including, without limitation, improvements to it) (together, Ideas). By submitting any Ideas, you agree that (1) they are not Confidential Information; (2) they are not subject to any use or disclosure restrictions (express or implied); (3) you claim no rights in them; and (4) Developer has no obligation to notify or compensate you in connection with their disclosure or use. You release Developer from all liability or obligations that may arise from the receipt, review, disclosure, or use of any Idea that you submit.

You will be required to register for an account with Developer to use the App. You will provide us with accurate information when setting up your account, and will maintain your account with current information. You will be responsible for establishing safeguards designed to prevent unauthorized access to, disclosure, use, or alteration of your account (safeguards may include, without limitation, user names, passwords, security questions and answers, or other credentials). You must notify Developer if you discover a security breach involving your account or the App. You are responsible for any unauthorized access to, disclosure, use, or alteration of your account, the App, or other transaction information that arises through your systems or account. You are responsible for maintaining the accuracy of information you submit and for keeping copies of information you export from the App. Upon cancellation, access to the App may end on the effective cancellation date. Customer may request an export of available Customer Data before that date by emailing support@fobesoft.com. Proactive P&L will retain and delete Customer Data in accordance with its Privacy Policy, applicable law, and any applicable written data-processing agreement (content may include, without limitation, transaction information, text, images, graphics, or photos).

7.1 The App is provided to you "as-is" and "as-available." You are solely responsible for determining if the App meets your needs. To the extent permitted by applicable law and except for express commitments in this Agreement or another signed written agreement, Developer disclaims implied warranties relating to your account or the App, including merchantability, fitness for a particular purpose, non-infringement, accuracy, and uninterrupted or error-free operation. This disclaimer does not limit Developer’s express privacy or data-security commitments or any rights that cannot lawfully be waived. Developer is not responsible for any disclosures, modifications, deletions, or other errors that arise in connection with your use of the App due to its interaction with other applications or their content.

7.2 You will indemnify Developer, its directors, officers, employees, agents, subsidiaries, and affiliates against any third party claims for losses, damages, costs, or expenses (including reasonable attorneys' fees) (together, Losses) that result from your use or misuse of the App, or your breach of this Agreement. Developer may assume the defense of any third party claims that you must indemnify it for (at your expense), and you will cooperate with the defense of these claims. You will not settle any third party claims involving more than the payment of money without Developer's written consent.

7.3 To the extent permitted by applicable law, Developer will not be liable to you for any lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages; regardless of whether these damages were foreseeable or either of us was advised they were possible.

7.4 Developer's total, aggregate liability to you for all Losses arising from any cause (regardless of the form of action or legal theory) in connection with this Agreement will not exceed the amount of fees you've paid to Developer during the 3 months prior to a Loss, except where such limitation is prohibited by law or where a separate signed agreement expressly provides otherwise.

You authorize Developer to contact you using the contact information you provide for account administration, billing, security, support, and other communications necessary to deliver the App, subject to applicable law. Promotional email, text messages, and automated or prerecorded marketing calls will be sent only where legally permitted and with any consent required by applicable law. You may opt out of marketing communications without affecting essential service communications. You are responsible for any charges imposed by your communications provider.

The App Provider makes the following additional commitments, representations, and warranties to Customer:

9.1 The App Provider will only process Customer Data and Personal Information on behalf of, and as Service Provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to perform the App Provider’s obligations under this Agreement, as permitted under the California Consumer Privacy Act, as amended (CCPA), and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will the App Provider “sell” (as defined by Privacy Laws) any such personal information.

9.2 The App Provider will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal Information available for App Provider’s own commercial purposes or in a way that does not comply with the CCPA or other Privacy Laws.

9.3 App Provider will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose.

10.1 App Provider will reasonably cooperate and assist Customer with meeting Customer's CCPA and Privacy Law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account, the nature of App Provider's processing, and the information available to App Provider. App Provider will make available to Customer, in a manner consistent with the functionality of the Service and App Provider’s role as a Service Provider of Personal Information of data subjects, the ability to fulfill data subject requests to exercise their rights under Privacy Laws.

10.2 If App Provider receives a request from Customer’s data subject to exercise one or more of its rights under Privacy Laws in connection with the Services, App Provider will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where possible, by using the functionality of the Services. App Provider shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

10.3 App Provider must notify the Customer without undue delay after becoming aware of a material complaint, regulatory notice, or communication that directly relates to either party's compliance with Privacy Laws in connection with the Services.

11.1 You represent and warrant that you have authority to enter into this Agreement, creating performance obligations that are legally enforceable against you.

11.2 Developer may modify this Agreement from time to time and will provide you with notice when these modifications occur (notification may be through the App, email, a website, changes to the date shown at the top of this Agreement, or other electronic means). Your continued use of the App indicates your acceptance of any modifications to this Agreement. You must stop using and uninstall the App if you do not agree to any modifications that are made to this Agreement.

11.3 Each of us will comply with the laws, rules, and regulations (together, Laws) that apply to our respective performance under this Agreement; including, without limitation, laws related to the collection and use of consumer information obtained via the App. You will follow the requirements of all user documentation provided for the App. You will not use your App to access, store, or transmit materials that are tortious, libelous, or offensive; contain malicious code, viruses, time bombs, Trojan horses, bots, scripts or other programs; or infringe third parties' intellectual property rights.

11.4 This Agreement is governed by New York law, without regard to its conflicts or choice of law statutes. The courts in or for Suffolk County, New York are proper venue for any proceedings in connection with this Agreement. Both of us waive our rights to a trial by jury in connection with this Agreement.

11.5 This is the entire agreement between us, and supersedes any prior agreements related to its subject matter. Any sections or terms of this Agreement that are, or become, invalid or unenforceable will be severed; and the remaining terms will continue in effect. Developer is not waiving any of its rights under this Agreement if it delays their exercise or fails to exercise them. We are independent contractors. This Agreement does not create an agency, partnership, or joint venture of any kind.

11.6 You may not assign this Agreement without Developer's written consent, which assignment is voidable by the Developer; however, Developer may assign this Agreement without notice to you or your consent.

11.7 You may contact Developer at 38 Phillips 32802 Ave Ponte Vedra Beach 903-676-6130, support@fobesoft.com