GENERAL TERMS AND CONDITIONS
These General Terms and Conditions govern the use of the product(s) or service(s) that the organization agreeing to these terms (“Customer”) may purchase from Prevedere, Inc. a Delaware corporation (“Prevedere”) These Terms and Conditions supplement and are incorporated into one or more license or services agreement(s) (each, an “Agreement”) and together with such Agreement(s), govern Customer’s access to the Prevedere Service and their associated applications. By clicking “I Agree,” attaching these Terms and Conditions to a purchase order or similar order form, or using the Service as a paid subscriber, Customer agrees to the terms below. If an individual is entering into these Terms and Conditions on behalf of an organization such organization shall be deemed the Customer hereunder, and such individual hereby represents and warrants that he has the power and authority required to bind such organization to these Terms and Conditions. Any capitalized terms not defined herein shall have the meaning given to such terms in the applicable Agreement.
- Materials, Software, & Intellectual Property.
(a) Intellectual Property in General. Prevedere retains all right, title, and interest in and to the Service, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including, without limitation, all software used to provide the Service and copyrights, patents, trade secrets, trademarks or trade names therein or created thereby, and this Agreement does not grant Customer any Intellectual Property Rights in or to the Service or any of its components. “Intellectual Property Rights” means any and all registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
(b) Materials. Without limiting the foregoing, Customer recognizes and agrees that: (i) the Materials are the property of Prevedere or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any Intellectual Property Rights, or any other right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s use of the Service.
(c) Additional Services Performed by Prevedere. Prevedere shall own any intellectual property created through the performance of Additional Services by Prevedere under this Agreement. For any such intellectual property created by these Additional Services Prevedere grants Customer and its Permitted Users a nonexclusive license during the Term to such intellectual property for the limited purposes of contemplated by this Agreement. Any such license shall be terminated at the time of the termination of this Agreement.
- Customer Duties.
(a) Cooperation. Customer agrees to provide reasonable access to users for questions, feedback, testimonials, and other publications Prevedere may desire.
(b) Restriction of Access. “Permitted Users” means any employee or contractor of Customer or Customer Affiliate that is granted user access credentials to access the Service. Customer shall restrict access to the Service to Customer’s Permitted Users and ensure compliance by all Permitted Users with the Acceptable Use Policy. Customer shall promptly report to Prevedere any known violation of the Acceptable Use Policy by its Permitted Users or any access to the Service by anyone other than a Permitted User.
(c) Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Customer or a Permitted User in connection with the Service; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (the “Customer Systems”); (iv) the security and use of Customer’s and its Permitted Users’ access credentials; and (v) all access to and use of the Service and Materials directly or indirectly by or through the Customer Systems or its or its Permitted Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from and all conclusions, decisions and actions based on such access or use.
- Acceptable Use Policy.
(a) Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity that accesses the Service through the Customer’s systems, whether or not such person or entity is a Permitted User. Customer shall not, and shall not permit any other party to, or attempt to: (i) use the Services in a manner that: (A) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (B) will disrupt a third parties’ similar use of the Service or licensed Materials; or (C) violates the Intellectual Property Rights of Prevedere or any third party; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Application is compiled or interpreted; (iii) violate or tamper with the security of the Service or the Materials; (iv) modify the Application or Materials or create any derivative product or service from any of the foregoing; (v) act as a service bureau of the Service or otherwise run the Application or access the Service or Materials for any unlicensed third party; (vi) disclose Materials to any third-party.
(b) Compliance. In the event of Customer’s breach of the Acceptable Use Policy, Prevedere may suspend or terminate Customer’s access to the Service, in addition to such other remedies as Prevedere may have at law or pursuant to this Agreement. Neither this Agreement nor the Acceptable Use Policy require that Prevedere take any action against Customer or any other customer for violating the Acceptable Use Policy, but Prevedere is free to take any such action it sees fit.
- Representations and Warranties.
(a) Representations and Warranties Generally. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; (iii) that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
(b) Representations and Warranties of Customer. Customer further represents and warrants
- that it has the right to disclose and provide to Prevedere any data provided through use and access of the Application; and
- (ii) that Customer’s use of and access to the Application complies with applicable laws and regulations.
(c) Representations and Warranties of Prevedere. Prevedere further represents, warrants and covenants that
(i) Prevedere has, and during the Term, will have, the right, power, and authority to provide the Service and to grant and all rights and licenses granted under this Agreement; and
(ii) neither Prevedere’s grant of the rights or licenses hereunder, nor its provision of the Service, nor the performance of any of its other obligations hereunder, does, to Prevedere’s knowledge as of the Effective Date, or will (A) conflict with or violate any applicable law, including any law relating to data privacy, data security, or personal information; (B) require the consent, approval, or authorization of any governmental or regulatory authority or other third party; or (C) require the provision of any payment or other consideration by Customer or any Permitted User to any third party.
(d) Exclusion of Representations and Warranties. Except for the express warranties specified herein, the service is provided “as is” and “as available”, and Prevedere makes no warranties, either express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, or data accuracy. Prevedere does not warrant that the operation of the application will be uninterrupted or error-free, or that all errors will be corrected.
(a) Indemnification by Customer. Customer will indemnify and hold harmless Prevedere, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fees, arising from use of the Service in violation of the Acceptable Use Policy either by a Permitted User or by any third-party end-user under the credentials provided to a Permitted User, unless such use of Permitted User’s credentials is due to the negligence or fault of Prevedere.
(b) Indemnification by Prevedere. Prevedere will indemnify and hold harmless Customer, its affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fees, arising from any claims made by an unaffiliated third party that a Service or Materials infringes a third party’s patent, copyright or trademark or makes unlawful use of its trade secret as set forth in Section 5(d).
(c) Notice and Defense of Claims. With respect to a claim entitled to indemnification under Section 5(a) above, a Party seeking indemnification under this Section 5 (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of any claim for which it believes it is entitled to indemnification. The Indemnifying Party shall assume control of the defense and settlement of such claim provided that (i) such defense and settlement shall be at the sole cost and expense of the Indemnifying Party (ii) the Indemnifying Party will not settle any third-party claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party from all liability with respect to such claim or unless the Indemnified Party consents to such settlement, and that the Indemnified Party will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
(d) Indemnification Relating to Claims of Infringement. With respect to a claim entitled to indemnification under Section 5(b) above, Prevedere will, at its sole expense and as Customer’s sole remedy for such claims, defend against such claim and pay any final judgment against Customer, provided that Customer promptly notifies Prevedere of any such claim in writing and Prevedere is given sole control over the defense and settlement of such claim. Prevedere may, without the knowledge or consent of Customer, agree to any resolution of the dispute that does not require on the part of Customer a payment or an admission of wrongdoing. Without limiting the preceding sentence, Prevedere may (i) seek to obtain through negotiation the right of Customer to continue using the Service; (ii) rework the Service so as to make it non-infringing; or (iii) replace the Service, as long as the reworked or replacement Service does not result in a material adverse change in the operational characteristics of the Service. If none of these alternatives is reasonably available in Prevedere’s sole discretion, Prevedere may terminate this Agreement and refund or credit to Customer an amount equal to any unused fees paid; provided however, that in the event of termination of the license Prevedere shall pay the Customer’s costs properly and directly incurred in transitioning to software and/or services providing similar material functionality to the affected Prevedere Service, provided that the Customer has made all reasonable efforts to mitigate such costs and Prevedere shall not in any event pay the actual costs of procuring or licensing the replacement software and/or service. This Section 5(d) shall not apply if the alleged infringement arises, in whole or in part, from: (i) modification of the Service or the Materials (ii) combination, operation or use of the Service with other software, hardware or technology not provided by Prevedere, if such infringement would have been avoided by use of the Service alone; or (iii) use of a superseded or altered release of the Service or the Materials, if such infringement would have been avoided by the use of a then-current release of the Service or the Materials, as applicable, and if such then-current release has been made available to Customer.
(e) Limitations and Exclusions of Liability. Other than with respect to claims for indemnification under Section 5 or instances of gross negligence, or willfully malicious conduct, neither Party will be liable to the other for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if a Party has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. Other than with respect to claims for indemnification under Section 5 or instances of gross negligence, or willfully malicious conduct, the cumulative liability of one Party to the other for all claims arising from or relating to this Agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed three times (3x) the total amount of all license fees paid to Prevedere by Customer during the Term of this Agreement. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
(a) Modifications. Prevedere may revise these Terms from time to time by posting the modified version on its website at least twenty (20) business days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Prevedere’s obligations unless affirmatively agreed to by Customer in advance. If, in Prevedere’s sole and reasonable discretion, the modifications being proposed are material, Prevedere will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Prevedere’s obligations hereunder, Customer agrees to be bound by such modifications.
(b) Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent nor partner of the other and neither may bind the other in any way.
(c) No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(d) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(e) Assignment & Successors. Prevedere may assign this Agreement or any of its rights or obligations hereunder without express written consent from Customer. Customer may not assign this agreement without the prior consent of Prevedere, which consent may be withheld by Prevedere in its sole discretion. Notwithstanding the preceding sentence, Customer may assign its rights under this agreement, without notice or consent, to a Customer Affiliate. Any change in control of Customer resulting from a merger, consolidation, stock transfer or asset sale shall be deemed an assignment or transfer for purposes of this Agreement that requires Prevedere’s prior written consent. Any attempted assignment in violation of this Section 6(e) shall be null and void. This Agreement will be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties.
(f) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Delaware without reference to such State’s principles of conflicts of law.
(g) Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(h) Customer Feedback. Any Customer feedback and input on case studies or marketing will be provided, at Customer’s sole discretion, if requested by Prevedere