This Agreement shall be governed and construed in accordance with the State of Delaware. All disputes, claims, suits and actions arising out of this Agreement or its validity will be finally decided in accordance with the provisions of American Arbitration Association rules. Disputes which cannot be settled through Arbitration or in the event a party intends to seek an immediate relief such as an injunction, restraint or an interim order may be obtained by a Party in any court of competent jurisdiction.
Nothing contained in this Agreement shall be construed to imply a joint venture, franchise, partnership, principal-agent, or employer-employee relationship between the Parties; and neither party by virtue of this Agreement shall have the right, power, or authority to act or create any obligation, express or implied, on behalf of the other party. Neither shall this Agreement be construed to create rights, express or implied, on behalf of or for the use of any party, other than the Parties
11.1 Force Majeure: Any delays in or failure of performance by either Party under this Agreement shall not constitute default hereunder if and to the extent caused by an event of force majeure, which is defined to be occurrences beyond the control of the Party affected, including but not limited to acts of the governmental authorities, acts of God, fire, flood, explosion, riots, war, rebellion, insurrection, sabotage and non-cooperation of third parties (other than the Personnel); provided that any delay or failure is remedied as soon as practicable and in any event within 5 business days after the termination of such event of force majeure.
11.2 Entire Agreement: The Agreement shall constitute the entire agreement between the Parties hereto relating to the subject matter hereof, and there are no oral statements, representations, warranties, undertakings or agreements between the Parties except as provided herein.
11.3 Assignment: Either Party may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party. The only exception to this is when the parties are acquired or merged with other entities.
11.4 Notices: Any and all notices or other communication that are required or desired to be provided to any Party under this Agreement shall be provided in writing by hand delivery, sent by fax or sent by courier or certified or registered mail to the respective address of Parties as set forth herein contained in this Agreement or to electronic mail to the authorized email id of the parties. Either Party may change the address, authorized email id and fax number to which the notices are to be sent by providing written notice to the other Party in one of the manners provided in this paragraph. Email communications and digital signature is fully binding on the Parties.
11.5 Waiver: It is expressly understood that if a Party on any occasion fails to perform any term of this contract and the other Party does not enforce that term, the failure to enforce on that occasion shall not prevent enforcement on any other occasion.
11.6 Severability: Each section of this Agreement is severable. If any provision is held unenforceable by a court of competent jurisdiction, such ruling shall not impair any other provision that remains intelligible and all other provisions shall continue in effect.
11.7 Client agrees that Company can use Client’s company name and logo in the ¨Our Clients¨ section in the marketing materials. Client reserves the right to review and require reasonable changes which the Company agrees to incorporate prior to any release or publication of such portfolio.
11.8 Order of Precedence. In the event of any inconsistency between the terms of this Agreement and the Order Form or SOW, the terms of the Order Form or SOW shall prevail.
10.1 Term of Agreement. The initial term of this Agreement (the “Initial Term”) shall begin on the Effective Date and continue thereafter unless terminated in accordance with this Agreement; provided however, that the Term shall be extended to the last completion date of any Order Form(s) or SOW then in effect.
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Payment upon Termination. Termination of the Agreement shall not relieve the Client of its obligation to pay the Company any Fees for the period prior to the effective date of termination for Services that were properly rendered and accepted by Client.
10.4 Surviving Provisions. Section 3 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.3 (Payment upon Termination), Section 11 (Miscellaneous Provisions), Section 12 and Section 13 (Governing Law and Arbitration) shall survive any termination or expiration of this Agreement.
9.1 CLIENT EXPRESSLY UNDERSTAND AND AGREE THAT CLIENT’S USE OF THE SERVICES IS AT ITS SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
9.2 COMPANY’s LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID TO COMPANY BY CLIENT HERE UNDER DURING THE PRECEDING SIX MONTHS; PROVIDED THAT, COMPANY’S TOTAL LIMIT ON LIABILITY HERE UNDER IS CUMULATIVE AND NOT PER INCIDENT
9.3 CLIENT EXPRESSLY UNDERSTAND AND AGREES THAT THE COMPANY AND ITS LICENSORS SHALL NOT BE LIABLE TO THE CLIENT FOR:
(i) ANY, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY CLIENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY CLIENT, AS A RESULT OF:
(iii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CLIENT’S USE OF THE SERVICES;
(iv) CLIENT’S FAILURE TO PROVIDE COMPANY WITH ACCURATE ACCOUNT INFORMATION;
(v) CLIENT’S OR USERS FAILURE TO KEEP THE PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
8.1 Company shall defend Client against any claim, demand, suit, or proceeding (" Claim") made or brought against Client by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party and shall indemnify Client for any damages finally awarded against, and for reasonable attorney's fees incurred by, Client in connection with any such Claim; provided, that Client (a) promptly gives the Company written notice of the Claim; (b) give Company sole control of the defense and settlement of the Claim; and (c) provide to the Company all reasonable assistance, at Company’s expense.
8.2 Indemnification by Client. Client shall defend Company against any Claim made or brought against Company by a third party alleging that Client Data, or Client use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Company for any damages finally awarded against, and for reasonable attorney's fees incurred by, Company in connection with any such Claim; provided, that Company (a) promptly gives the Client a written notice of the Claim; (b) give Client sole control of the defense and settlement of the Claim; and (c) provide to Client all reasonable assistance, at Client expense.
8.3 Exclusive Remedy. This Section 7 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.
7.1 Company Warranties. Company warrant that (i) the Services shall perform materially in accordance with any user guide and (ii) the functionality of the Services will not be materially decreased during a subscription term.
7.2 Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any malicious Code
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.1 As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Confidential Information shall include Client Data and the requirements for the Services; Company Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Schedules, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Client Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 Protection of Client Data. Without limiting the above, Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data but in no event less than that of the applicable industry standards. Company shall not (a) modify Client Data, (b) disclose Client Data except as compelled by law in accordance with Section 5.4 (Compelled Disclosure) or as expressly permitted in writing by Client, or (c) access Client Data except to provide the Services or prevent or address service or technical problems, or at Client request in connection with the Client support matters.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.5 Data Protection. In performing the Services, Company will comply with the Privacy Policy, which is available at https://prismforce.com/legal/privacy and incorporated herein by reference. The Privacy Policy is subject to change at Company’s discretion; however, Company policy changes will not result in a material reduction in the level of protection provided for Client Personal Data provided as part of Client content during the Services. Where the Company Processes Personal Data, this Agreement and the Company’s Data Processing Agreement https://prismforce.com/documents/data-processing-addendum shall apply to such Processing.
5.1 Subject to the limited rights expressly granted hereunder, Company reserve all rights, title and interest in and to the Services and the Company Products, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.
5.2 Client shall not (i) permit any third party to access the Services except as permitted herein (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Client’s own computers or otherwise for Client’s own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
5.3 Company shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the operation of the Services except any data or materials that is owned by Client or is Client confidential information.
5.4 The Client shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
5.5 Outputs of Company Products and Services. Company hereby assigns to Client all of the Intellectual Property Rights and all other ownership rights, title and interest in all output and/or results from use of the Company Products or Services by Client or its Users, including but not limited to any reports, graphics, data, specification, programs and all other materials or computer output (“Outputs”), in each case to the extent that such rights do not automatically vest in the Client.
Notwithstanding anything to the contrary, the Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Processing of Client Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data solely in an aggregated and anonymized or other de-identified forms to improve and enhance the Services and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.6 Feedback. If Client or its Users provide the Company any suggestions, recommendations, or other feedback relating to Company’s current or future products or services (“Feedback”), Company shall have the right to use the Feedback in any manner, including, but not limited to future enhancements and modifications to the Services. Client hereby grants to the Company and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Client or any third party. In addition, Company shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services.
4.1 Client shall be solely responsible for the activities under their Account for the use of the Services, including any Processing of Client Data shared with the Company for the Services.
4.2 Client will not, directly or indirectly: (i) license, sublicense, sell, rent, lease, transfer, assign, distribute, disassemble, reverse engineer, decompile, disassemble or make available the Services to any third-party other than the Users (ii) attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (iii) modify, hack, Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks (iv) translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (v) use the Services to process, store or transmit Client Data, in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations and without the necessary consents and authorization; (vi) use the Services to store or transmit any content that infringes upon any person’s intellectual property rights; (vii) use the Services to knowingly post, transmit, upload, link to, send, or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; (viii) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Website(s) or the Services (through the use of manual or automated means); (ix) use the Services or any Software for time sharing or otherwise for the benefit of a third party; (x) access or use the Services for the purpose of building a competitive product or service or copying its features or user interface; or (xi) remove any proprietary notices or labels.
4.3 Client represents, covenants, and warrants that Client will use the Services only in compliance with this Agreement and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although the Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4.4 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, or other similar equipment (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, the Client Account, Client’s passwords (including but not limited to administrative and user passwords), and Client’s files, and for all users of Client Account or the Equipment.
4.5 If the Company informs the Client that a specified activity or purpose is prohibited with respect to the Services, Client will ensure that it immediately ceases the use of Services for such prohibited activity or purpose.
3.1 Client shall pay the fees specified in the applicable Order Form or SOW. Except as otherwise specified herein, (i) Fees are quoted and payable in US Dollars (USD) (ii) Fees are based on services purchased and not actual usage, and (iii) payment obligations are non-cancellable and fees paid are non-refundable
3.2 Invoicing and Payment. Company shall invoice and invoiced charges are due net 30 days from the invoice date. Any overdue Fees or other payments may accrue interest at the rate of 1.5% per month on the outstanding balance
3.3 Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, service tax, GST, use or withholding taxes, assessable by any local, state, provincial, central or foreign jurisdiction (collectively, "Taxes"). Client shall be responsible for paying all Taxes associated with the Subscription Services. In the event Company is legally obligated to collect the Taxes, the appropriate amount shall be invoiced to and paid by the Client.
2.1 Company hereby grants Client and the Users, solely to the extent described in the applicable Order Form, a subscription to access that portion of Company Products so described and access and use Subscription Services and any related documentation so described. Client acknowledges and agrees that (i) the Company Products and Subscription Service may be accessed and used by no more than the specified number of Users, on the number of computers or equipment, and/or at the number of sites, for the term and limited to the functionality set forth in the applicable Order Form, ii) Additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services and iv) any Client Affiliate may subscribe to the Services or require additional Services upon execution of an addendum to the Order Form or SOW between the Company and the Client Affiliate. Such Client Affiliate on execution of the addendum will be subject to the terms and conditions of this Agreement, and (v) the Company’s Products and Subscription Service may be used for Client’s and Client Affiliates’ normal business purposes solely to the extent described in an applicable Order Form.
2.2 Where the Client avails of the technical support offered by Company, the Subscription Services shall be made available as per the Prismforce Enterprise Service Level Terms, as available on https://prismforce.com/documents/prismforce-enterprise-service-level-terms. In the event of any operational errors leading to non-availability of the Subscription Services, support shall be provided as per Prismforce Enterprise Service Level Terms.
2.3 For the term of this Agreement, Company grants the Client a limited, non-perpetual, revocable, non-exclusive, non-sublicensable, non-transferable and non-assignable licence for Users to use the Company Products it has subscribed to as part of the Services for internal business use as informed to the Company by Client. Such licence terminating automatically on termination of this Agreement
“Affiliate” means, in relation to any Party, a person who controls, is controlled by, or is under the common control with such Party. For the purposes of this definition, “control” means with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty percent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise;
“Client Data” means the data inputted by the Client, Users, or the Company on Client’s behalf for the purpose of using the Subscription Services or facilitating the Client’s use of the Subscription Services.
“Order Form” means an ordering document executed between the Parties which details the number of users, tenure, fees and terms for the software subscription services
“SOW” means a written scope of work document executed between the Parties which details the scope, fees, terms and other details for the professional services
"Subscription Services" means Services and any associated technical support that the Client subscribes to as per the Order Form.
“Fees”: the fees payable by the Client to the Company as set out in the Order Form or SOW."Services" means all online services, computer applications, associated user interfaces and any related technology made available by the Company on its website which includes access to, and use of, the Subscription Services.
"Company Products" means one or more of the proprietary software or platform owned and operated by the Company and identified in the Order Form(s) issued under this Agreement.
"Users" means individuals authorized by the Client to use the Subscription Services, and have been supplied user identifications and/or passwords by the Company. Users may include but are not limited to Client’s employees, consultants, contractors and agents; or third parties with which Client transact business.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications, including but not limited to those used in Company Products.
This Agreement permits the Client to purchase subscriptions to the Service and other services from Prismforce pursuant to Prismforce Order Form, or order confirmations referencing this Agreement (“Orders”) and sets forth the basic terms and conditions under which those products and services will be provided. This Agreement will govern Client’s initial purchase on the Effective Date as well as any future purchases made by the Client that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Client’s initial access to any Service through any online provisioning or order process or (b) the effective date of the first Order referencing this Agreement.
This Agreement sets forth the terms and conditions for Client’s subscription and use of the Company Products and associated Services as set forth in the applicable Order Form.
The Company and the Client will be individually referred to as Party and jointly as Parties as the context requires.
These Terms of Service (“Agreement”) are entered into by and between Prismforce Inc. (“Prismforce”, “Company” or “we”) and the “Client”. The Client means entity on behalf of which this Agreement is accepted.
If you (the person accepting this Agreement) are accepting this Agreement on behalf of your employer or another entity, you agree that: (i) you have full legal authority to bind your employer or such entity to this Agreement, and (ii) you agree to this Agreement on behalf of your employer or such entity.
If you are accepting this Agreement using an email address from your employer or another entity, then: (i) you will be deemed to represent that party, (ii) your acceptance of this Agreement will bind your employer or that entity to these terms, and (iii) the word “you” or “Client” in this Agreement will refer to your employer or that entity.
If you have a separate written agreement with Prismforce for your use of the Service, this Agreement will not apply to you.
By clicking on the “Agree” (or similar button or checkbox) that is presented to you at the time of placing an Order, or by using or accessing the Services, you confirm you are bound by this Agreement. If you do not wish to be bound by this Agreement, do not click “Agree” (or similar button or checkbox), or use or access the Services.