Prewitt Ridge Inc.
Last updated: Mar 22 2021
The following Terms of Service (this “Agreement”) describes your legal rights and responsibilities the access to and use of the Prewitt Ridge Inc. (“Prewitt Ridge”) websites, including without limitation, https://www.prewittridge.com (“Websites”); web and mobile applications (“Apps”); application program interfaces (“APIs”); or systems engineering tools and services, including without limitation, Verve, and any other products or services provided by Prewitt Ridge (collectively, the “Services”). This Agreement creates a legal and binding agreement between Prewitt Ridge and the person or entity identified as the Customer (as described below) agreeing to be bound by this Agreement.
If you access or use the Services as an individual not formally associated with an organization (for example, an entrepreneur working with a couple of associates prior to the formation of your company), then you are entering into this Agreement on your own behalf, you are the “Customer” and you will be assigned as the administrator of your Account (as defined herein). If you access or use the Services on behalf of a company, organization, government, or other legal entity (such as your employer), then that entity is the “Customer” and that entity can modify or re-assign roles within its Account, including the administrator of its Account, and otherwise exercise the rights granted to the Customer pursuant to this Agreement. When you sign up for an Account, purchase a Subscription (as defined herein), or accept this Agreement on behalf of an entity, in its role as the Customer, you hereby represent and warrant to Prewitt Ridge that you have the authority to legally bind that entity to this Agreement, and your acceptance of this Agreement will be treated as acceptance of this Agreement on behalf of the entity that you represent. Customer represents and warrants to Prewitt Ridge that it is legally capable of entering into and performing this Agreement and is not a person or entity barred from receiving or using the Services under the laws of the United States or such other applicable jurisdiction. The applicable Customer is referred to herein as the “Customer.” Those persons who access or use the Services in connection with Customer’s Account are referred to herein as the “End Users.” This Agreement governs Customer’s and its End Users’ access to and use of the Services.
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO COMPLY WITH THIS AGREEMENT, CUSTOMER CANNOT ACCESS OR USE THE SERVICES.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE (SEE SECTION 10.4), AND CUSTOMER AGREES THAT DISPUTES BETWEEN CUSTOMER AND PREWITT RIDGE WILL BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION, AND CUSTOMER IS WAIVING ITS RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. THE SERVICES.
1.1. Access; Customer Account. Prewitt Ridge will make the Services available to Customer and its End Users as described in this Agreement. To access and use the Services, Customer must create an account by providing the information required to complete the registration process (“Account”). Customer’s Account includes all individual End Users’ Accounts. Customer agrees to provide current, accurate, and complete information necessary for the registration of Customer’s Account. Prewitt Ridge reserves the right to suspend or terminate Customer’s or any End User’s Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false, or misleading. Customer is responsible for all login credentials of Customer’s Account, including all user names and passwords assigned to or created by its End Users, and Prewitt Ridge shall not be liable for any claims, losses, or damages that may occur as a result of Customer’s failure, or the failure of its End Users, to maintain the confidentiality of their login credentials. Customer agrees to notify Prewitt Ridge if any passwords are lost, stolen, or disclosed to an unauthorized third party, or Customer becomes aware of any unauthorized use of or access to Customer’s Account. Prewitt Ridge may communicate with Customer and its Users via email or pushed notifications regarding the Services, system updates, or other issues related to Customer’s Account.
1.2. Customer Responsibilities. Customer is responsible for ensuring that each of its End Users abides by this Agreement at all times in connection with their use of the Services. Customer acknowledges and agrees that Customer is solely responsible for (a) all activity that occurs under Customer’s Account, including its End Users’ activities on the Services, (b) informing its End Users of any relevant policies, practices, and settings that Customer elects to enforce related to its End Users’ use of the Services, (c) obtaining any rights, permissions, or consents from its End Users that are necessary for Customer’s lawful use of the Services and the collection and processing of Customer Data (as defined herein) by Prewitt Ridge in connection with Customer’s or its End Users’ use of the Services, and (d) responding to and resolving any dispute between Customer and any of its End Users related to or based on Customer Data or use of the Services. Customer will, and ensure that its End Users will, use the Services only in accordance with all applicable federal, state, and local laws, regulations, rules, ordinances, codes, decrees, judgments, directives, or judicial or administrative orders, or other duly authorized actions of any governmental authority with competent jurisdiction (“Applicable Laws”).
1.3. Services Ownership. As between Prewitt Ridge and Customer, Prewitt Ridge owns all rights, title, and interest in and to the Services (excluding only Customer Data), including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights in and to the Services or utilized by Prewitt Ridge in connection with the delivery of the Services. Prewitt Ridge reserves all rights, title, and interest in and to the Services not expressly granted to Customer under this Agreement.
1.4. Self-Hosted License. When the Services are provided for installation on systems under Customer’s control (“Self-Hosted Services”), subject to and in accordance with this Agreement and solely for the duration of the applicable Subscription Period (as defined herein), Prewitt Ridge grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license to (a) install a single production instance of the Services on Customer’s systems solely for Customer’s internal business purposes, and (ii) use and permit its End Users to use the Services for Customer’s internal business purposes, provided that the number of End Users shall be expressly limited to the number of End Users authorized by Customer’s Subscription (as defined herein) or subsequently modified in Customer’s Account in accordance with this Agreement.
1.5. Cloud License. When the Services are hosted by Prewitt Ridge (“Cloud Services”), Prewitt Ridge grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Services, during the applicable Subscription Period (as defined herein), solely for Customer’s internal business purposes, subject to and in accordance with this Agreement. Customer’s access and use of the Services is expressly limited to the number of End Users authorized by Customer’s Subscription (as defined herein) or subsequently modified in Customer’s Account in accordance with this Agreement.
1.6. Restrictions; Prohibited Uses. Customer acknowledges that the Services contain trade secrets of Prewitt Ridge and its licensors, and Customer agrees that it and its End Users will not access or use the Services in any manner inconsistent with Prewitt Ridge’s proprietary rights. Customer and its End Users will not, and agree not to, (a) use, or permit the use of, the Services except as expressly authorized under this Agreement, (b) interfere with or disrupt the integrity or performance of the Services or any third party application or data contained therein, (c) reverse engineer, decompile, disassemble, decrypt, or otherwise tamper with the Services; (d) derive the trade secrets, source code, object code, algorithms, or such other code (in the form in which it is customarily read and edited) of the Services; (e) defeat, avoid, by-pass, remove, disable, deactivate or otherwise circumvent any software protection mechanisms, restrictions on access, or any other features or functionalities of the Services; (f) gain unauthorized access to the Services; (g) disseminate viruses, adware, spyware, worms, or other malicious code in or through the Services; (h) overload, flood, spam, or otherwise create an undue burden on the Services infrastructure; (i) reproduce or copy the Services, except that Customer may make one archival copy of Self-Hosted Services solely for backup purposes; (j) modify, adapt, translate, emulate, or create derivative works of the Services; (k) distribute, sell, sublicense, or otherwise transfer or provide access to the Services (except to Customer’s authorized End Users); (l) access the Services for the purpose of building a similar or competitive product or service; (m) monitor availability, performance, or functionality of the Services for any benchmarking or competitive purposes; (n) remove, alter, or obscure any proprietary or intellectual property rights notices or marks appearing on the Services; (o) use the Services in any manner that is unlawful, in violation of any third party rights, or in violation of this Agreement; or (p) attempt to do any of the foregoing acts or assist or permit any third party to do any of the foregoing acts. In addition to any other remedies that may be available, Prewitt Ridge reserves the right to take remedial action that it deems necessary, including the immediate suspension or termination of Customer’s or any End User’s Account, at any time, without liability to Prewitt Ridge should Customer or any of its End Users fail to abide by these restrictions or, if in Prewitt Ridge’s sole discretion, such action is deemed necessary to prevent, investigate, or otherwise address a threatened or actual disruption to or misuse of the Services. Prewitt Ridge reserves the right to notify the Customer or administrator associated with Customer’s Account with respect to any End User’s violation of this Agreement.
1.7. Customer Feedback and Derivative Works. Customer is not required to provide (a) any suggestions, comments, requests, recommendations, or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works, or other intellectual property (“Derivative Works”) related to the Services or any test features, services, or products to which Customer is given access. If Customer or any End User provides any Feedback or Derivative Works to Prewitt Ridge, Customer or End User, as applicable, grants Prewitt Ridge a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use (or not use), or incorporate into the Services, any Feedback or Derivative Works without compensation to Customer or such End User and without implying or creating any interest on Customer’s or such End User’s part in the Services that may be based on such Feedback or Derivative Works. Customer may not create Derivative Works relating to the Services or any test features, services, or products to which Customer is given access, except with prior express written consent from Prewitt Ridge.
1.8. Customer Systems. The Self-Hosted Services must be installed on Customer’s information systems and infrastructure or Customer’s designated third party service provider’s information systems and infrastructure under Customer’s control (“Customer Systems”). Customer shall be solely responsible for the operation, maintenance, and security of the Customer Systems hosting the Self-Hosted Services. Prewitt Ridge shall have no liability for any claims, losses, or damages arising out of or in connection with Customer’s or its End Users’ use of the Customer Systems in combination with the Self-Hosted Services.
1.9. Use of Third Party Applications in Connection with the Services. Prewitt Ridge makes various third party applications and services available for use in connection with the Services (the “Third Party Applications”). Customer’s use of such Third Party Applications, and any exchange of data between Customer and such Third Party Applications is solely between Customer and such Third Party Applications service provider. Prewitt Ridge does not warrant or support Third Party Applications or any other non-Prewitt Ridge product or service, regardless of whether such Third Party Applications are promoted or made available through the Services or are designated by Prewitt Ridge as “certified” or “working with” the Services or Prewitt Ridge. Customer acknowledges and agrees that (a) Third Party Applications service providers may have access to Customer Data in connection with the interoperation and support of such Third Party Applications with the Services, (b) Customer’s use of such Third Party Applications may require Customer to agree to a separate agreement or terms and conditions with such Third Party Applications service providers, which will govern Customer’s use of such Third Party Applications, and (c) as between Customer and Prewitt Ridge, Customer is solely responsible for reviewing such Third Party Applications service provider’s policies and practices to ensure that they meet Customer’s legal and business requirements. To the extent Customer authorizes the access to or transmission of Customer Data through Third Party Applications, Prewitt Ridge shall not be responsible for any use, disclosure, modification, or deletion of such Customer Data by such Third Party Applications or for any act or omission on the part of such Third Party Applications service provider. Prewitt Ridge shall have no liability for any claims, losses, or damages arising out of or in connection with Customer’s or its End Users’ use of any Third Party Applications that are accessed from or used in combination with the Services.
1.10. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer and its End Users will not access or use the Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. Customer and its End Users will not use the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business. Notwithstanding the generality of the foregoing, Customer and its End Users shall not transmit, process, store, or use information or documentation related to the manufacture, sale, or distribution of defense and space-related articles or services as defined in the U.S. Munitions List (USML) or other “technical data” subject to the U.S. International Traffic in Arms Regulations, 22 CFR 120-130 (ITAR) (collectively, “ITAR Restricted Data”) in connection with the Services, without Prewitt Ridge’s prior written consent and the provision of Prewitt Ridge’s ITAR-compliant version of the Cloud Services or Customer accepts responsibility for ITAR-compliance with its deployment of Self-Hosted Services (collectively, “ITAR Services”). Customer’s violation of this Section 1.7, including without limitation, if Customer or its End Users transmit, process, store, or use ITAR Restricted Data on the Services (other than ITAR Services), will be deemed a material breach of this Agreement.
1.11. Use Outside of the United States. Prewitt Ridge controls and operates the Services from its offices in the United States. Except as explicitly set forth herein, Prewitt Ridge makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Services from other jurisdictions do so at their own risk and are responsible for compliance with Applicable Laws of such jurisdiction. Prewitt Ridge may offer Services in other jurisdictions that are subject to different terms and conditions. In instances where Customer’s use of the Services occurs from within such jurisdiction, the Prewitt Ridge terms and conditions governing that non-U.S. jurisdiction shall take precedence over any conflicting provisions in this Agreement with respect to Customer’s use of the Services from within such foreign jurisdiction.
1.12. Beta Access. Customer may be invited to participate in the review, use, and testing of pre-release versions of the Services or new features or functionalities of the Services which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or similar term (“Beta Access”). Customer acknowledges and understands that its participation in such Beta Access is not required, is at Customer’s own risk, is made available on an “as is” basis only, and may be subject to additional terms related to their use.
2. CUSTOMER DATA.
2.1. Customer Data Ownership. As between Customer and Prewitt Ridge, Customer owns all rights, title, and interest in and to any data, information, text, graphics, images, files, or other materials that Customer or its End Users create, upload, transmit, transfer, process, store, send, receive or use in connection with their use of the Services (collectively, the “Customer Data”), including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights embodied therein. Customer reserves all rights, title, and interest in and to Customer Data not expressly granted to Prewitt Ridge under this Agreement.
2.2. Self-Hosted Services Customer Data. Customer must maintain reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access, use, modification, deletion, or disclosure of the Customer Data to ensure a level of security appropriate to the risk on the Self-Hosted Services. Customer shall be solely responsible for the privacy, security, and data protection of the Customer Data on the Self-Hosted Services. Prewitt Ridge shall have no liability for any claims, losses, or damages arising out of or in connection with Customer’s or its End Users’ use of the Customer Data on the Customer Systems in combination with the Self-Hosted Services.
2.3. Cloud Services Customer Data.
2.3.1. Limited License to Customer Data. Customer (on behalf of itself and all of its End Users) hereby grants to Prewitt Ridge a non-exclusive, non-transferable, non-sublicensable (except as needed for the provision of the Cloud Services), worldwide, royalty free, limited license to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export, and display Customer Data solely in connection with Customer’s use of the Cloud Services and Prewitt Ridge’s provision of the Cloud Services to Customer, subject to and in accordance with this Agreement.
2.3.2. Protection of Customer Data. Prewitt Ridge will maintain reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access, use, modification, deletion, or disclosure of the Customer Data to ensure a level of security appropriate to the risk on the Cloud Services, and will ensure that third party service providers utilized by Prewitt Ridge in connection with its delivery of the Cloud Services do the same. Notwithstanding the foregoing, Customer consents to Prewitt Ridge’s internal access, collection, transmission, storage, copying, processing, analysis and use of Customer Data (a) in order to provide the Cloud Services to Customer and to monitor compliance with this Agreement, (b) for Account administration, (c) to prevent or address service or technical problems in connection with support matters, (d) as expressly permitted in writing by Customer, and (e) in anonymized, de-identified, or aggregated format without the use of any personal information, for research and development purposes related to the Services and the development and improvement of Prewitt Ridge products and services. Prewitt Ridge owns and maintains the right, title, and interest in and to any data or information regarding the use or optimization of the use of the Services, so long as such data does not include Customer Data.
2.3.3. International Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or another jurisdiction outside of the United States in connection with the Cloud Services, Customer must notify Prewitt Ridge in writing, and the parties will agree to a Data Processing Addendum with additional provisions relating to privacy and data protection as required by Applicable Laws, which will be incorporated into and made a part of this Agreement.
2.3.4. Data Maintenance. Prewitt Ridge will follow its internal archival procedures for Customer Data on the Cloud Services, including regular backups of all Customer Data. In the event of any loss or corruption of Customer Data, Prewitt Ridge will use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Prewitt Ridge. Prewitt Ridge shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Customer Data caused by Customer or any third party.
2.3.5. Security Event. Prewitt Ridge will promptly inform Customer of any known or reasonably suspected security breach or unauthorized disclosure of Customer Data in connection with the Cloud Services (“Security Event”). If there is a Security Event, Prewitt Ridge shall (a) take all reasonable steps to mitigate any potential damages, and (b) promptly respond to reasonable security-related inquiries from Customer and take all reasonable steps to identify, investigate, and resolve applicable security issues on a timely basis commensurate with the level of risk involved.
3. MAINTENANCE AND SUPPORT.
3.1. Service Level Agreement. Prewitt Ridge will provide Customer with maintenance and support services for the Services in accordance with and subject to the service level agreement located at https://www.prewittridge.com/sla (“SLA”), which is hereby incorporated into and made a part of this Agreement.
3.2. Limitations. Prewitt Ridge will have no obligation to provide support of any kind for problems in the operation or performance of the Services to the extent caused by any of the following: (a) non-Prewitt Ridge software or hardware or use of the Services in conjunction therewith (other than third party service providers utilized by Prewitt Ridge in connection with its delivery of the Services); or (b) Customer’s use of the Services other than as authorized in this Agreement. If Prewitt Ridge determines that it is necessary to perform maintenance services for a problem in the operation or performance of the Services that is caused by either of the above problems, then Prewitt Ridge will notify Customer and have the right to invoice Customer for all such maintenance services performed by Prewitt Ridge and approved in advance by Customer.
4. FEES AND PAYMENT.
4.1. Subscription Fees. The Services are provided on a tiered subscription basis (“Subscription”) for a monthly, quarterly, or annual period (“Subscription Period”) with fees calculated based on the total number of End Users (“Subscription Fees”). Customer’s Subscription Period commences on the date of Customer’s initial purchase of a Subscription, regardless of the date on which Customer commences use of the Services or establishes individual End User accounts. Customer may change the type of Subscription or increase number of End Users purchased at any time by (a) emailing Prewitt Ridge at email@example.com and following the instructions, if any, provided in response to the change request, or (b) initiating a change through Customer’s Account settings within the Services. The number of End Users purchased under a Subscription cannot be decreased during the applicable Subscription Period. Customer is responsible for and obligated to pay for all Subscription Fees incurred on Customer’s Account. Prewitt Ridge reserves the right to revise Subscription Fees associated with the Services at any time upon not less than 30 days prior notice to Customer, with such revised Subscription Fees to be applied to Customer upon Customer’s next Subscription Period and with respect to any additional End Users added to Customer’s Account during the then-current Subscription Period.
4.2. Payment Terms. By purchasing a Subscription, Customer expressly authorizes Prewitt Ridge to charge Customer for all Subscription Fees incurred in connection with this Agreement. Subscription Fees are due in advance and are non-refundable. Customer must provide a valid credit card or substitute payment method acceptable to Prewitt Ridge to subscribe to the Services (“Payment Method”). Prewitt Ridge utilizes a third party service provider that specializes in payment processing (“Payment Processor”). Customer will provide its Payment Method information directly to the Payment Processor, who stores and maintains Customer’s Payment Method in accordance with security protocols, subject to the Payment Processor’s security and privacy policies. Prewitt Ridge does not keep or store Customer’s Payment Method information. Prewitt Ridge periodically communicates with the Payment Processor to request the processing of charges for the Subscription Fees in accordance with this Agreement. The Payment Processor then attempts to process the charges and, if successful, deposits the proceeds into Prewitt Ridge’s account. Customer is solely responsible for any overdraft or other bank fees charged to Customer’s Payment Method. Customer is required to keep its Payment Method information current, complete, and accurate (such as a change in billing address, credit/debit card number, expiration date, etc.). All payment obligations are non-cancelable.
4.3. Auto Renewal. Customer agrees that its Subscription to the Services will automatically renew without further notice and continues until cancelled by Customer or Prewitt Ridge terminates Customer’s access to or use of the Services in accordance with this Agreement. Prewitt Ridge will, and Customer expressly authorizes Prewitt Ridge to, automatically charge Customer for the applicable recurring Subscription Fees, at the then-current rate, in accordance with Customer’s Subscription Period (e.g. each month, quarter, or year), on the calendar day corresponding to the commencement of Customer’s Subscription. If Customer’s Subscription commenced on a day later than the number of days in a given month, then the payment date will be the last day of that month (e.g. if a monthly Subscription started on January 31st, and the next payment date will be February 28th). Prewitt Ridge may also periodically authorize Customer’s Payment Method in anticipation of applicable Subscription Fees or related charges.
4.4. Subscription Cancellation. Customer may cancel its Subscription at any time but such cancellation will be effective at the end of the then-current Subscription Period. CUSTOMER WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, Customer may (a) email Prewitt Ridge at firstname.lastname@example.org and following the instructions, if any, provided in response to the cancellation request, or (b) initiate a cancellation through Customer’s Account settings within the Services. Customer will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription Period. Upon cancellation, Customer will have access to its Account until the most recently paid-up Subscription Period ends. Customer acknowledges sole responsibility for and assumes all risk arising from cancellation of its Subscription, including, without limitation, any loss of data (including Customer Data) associated with Customer’s Account.
4.5. Taxes. The Subscription Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with Customer’s purchases under this Agreement except for those based on Prewitt Ridge’s net income. Taxes shall not be deducted from the payments to Prewitt Ridge, except as required by Applicable Laws, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, Prewitt Ridge receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made.
4.6. Late Payment; Suspension. If Customer’s Payment Method is rejected or any Subscription Fees are not received from Customer by the due date, then at Prewitt Ridge’s discretion, such overdue Subscription Fees may accrue late fees at the lesser of the interest rate of 1.5% on the outstanding balance per month or the maximum interest rate permitted by Applicable Laws from the date such payment was due until the date paid. Prewitt Ridge shall also be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, and legal expenses) incurred in attempting to collect payment from Customer. Prewitt Ridge is entitled to, without limiting its other rights and remedies, suspend Customer’s access to and use of the Services until overdue amounts due are paid in full.
4.7. Trial Subscriptions. Prewitt Ridge may, at its option, offer new customers a limited free trial of the Services, subject to this Agreement. Notwithstanding anything to the contrary herein, Customer’s access to the Services via any free trial offer is provided at Prewitt Ridge’s sole discretion and Prewitt Ridge shall have the right to terminate a Customer’s free trial access to the Services at any time and for any reason. No organization or individual is entitled to receive more than one free trial of the Services.
5. TERM AND TERMINATION.
5.1. Term. This Agreement, as may be updated from time to time, will become effective on the earlier of the date that Customer accepts this Agreement, the date that Customer or its End Users start using the Services under Customer’s Account, or the commencement of Customer’s Subscription, and will remain in full force and effect until Customer’s Subscription has been cancelled or Customer’s access to or use of the Services has been terminated.
5.2. Termination. Either party may terminate Customer’s Subscription and this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within 10 days following written notice by the non-breaching party (including details sufficient to identify the material breach) or (b) ceases its business operations or becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and such proceedings are not dismissed within 60 days.
5.3. Effect of Termination. Upon cancellation or termination of Customer’s Subscription and this Agreement, Prewitt Ridge may immediately deactivate Customer’s Account and suspend or terminate Customer’s access to and use of the Services; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay Subscription Fees accrued or payable to Prewitt Ridge or of any liability pertaining to Customer’s use of the Services prior to such cancellation or termination.
5.4. Survival. Sections 1.3, 1.7, 1.10, 2.1, 2.3.6, 5.4, 6, 7, 8, 9, and 10 of this Agreement, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination of this Agreement, will survive and continue in full force and effect after any termination of this Agreement.
6.1. Definition of Confidential Information. In connection with this Agreement, each party (“Discloser”) may from time to time disclose certain information to, or make certain information available to, the other party (“Recipient”), whether orally, in writing, or otherwise, that is not generally known to the public at the time of disclosure and is either identified as, or reasonably should be understood to be, confidential or proprietary given the nature of the information and the circumstances of disclosure (“Confidential Information”). Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, business, scientific, technical, engineering, or financial information such as, business and marketing plans, technology and technical documentation, product plans and roadmaps, research and development, fee structure and pricing, business methods and processes, strategies, forecasts, proposals, and the results of any audit related to the Services. Customer’s Confidential Information also includes Customer Data. Prewitt Ridge’s Confidential Information also includes the Services. Confidential Information does not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to Discloser; (b) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to Discloser; (c) is or was independently developed by Recipient without use of or reference to Discloser’s Confidential Information; or (d) is or was lawfully received by Recipient from a third party under no obligation of confidentiality.
6.2. Ownership of Confidential Information. Discloser shall retain all right, title, and interest in and to its Confidential Information. Neither the execution and delivery of this Agreement, nor the furnishing of any Confidential Information shall be construed as granting to Recipient either expressly, by implication, estoppel, or otherwise, any license under any intellectual property or proprietary rights now or hereafter owned or controlled by Discloser, nor any right to use, copy, sell, develop, or exploit the Confidential Information made available to Recipient, except to fulfill the purpose of this Agreement.
6.3. Protection of Confidential Information. Recipient shall not use Discloser’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Agreement. Except with the express prior written permission of Discloser, or as required by Applicable Laws, Recipient will not disclose, disseminate, or otherwise communicate, in whole or in part, Discloser’s Confidential Information to any third party except to Recipient’s directors, officers, employees, representatives, agents, contractors and subcontractors (“Representatives”) who need to know such Confidential Information for purposes consistent with this Agreement and are bound by confidentiality obligations that are at least as restrictive as those contained herein. Recipient may also disclose Discloser’s Confidential Information in any due diligence of Recipient in connection with a bone fide fundraising, merger, acquisition, or similar transaction, provided that such disclosure is made pursuant to a written confidentiality agreement with terms that are at least as restrictive as those contained herein, and provided further that Recipient may not disclose Discloser’s Confidential Information, in any event, to any competitor of Discloser without Discloser’s prior written consent. Recipient agrees to protect Discloser’s Confidential Information from disclosure with the same degree of care used to protect the confidentiality of its own Confidential Information, but in no event less than reasonable care. If Recipient becomes aware of, or has reasonable grounds to suspect any unauthorized disclosure of Discloser’s Confidential Information, Recipient shall immediately notify Discloser in writing.
6.4. Compelled Disclosure. Recipient may access and disclose Discloser’s Confidential Information if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event Recipient will, if lawfully permitted to do so, provide Discloser with reasonable advance written notice prior to such access or disclosure so as to allow Discloser an opportunity to seek appropriate protective measures. Recipient will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. If Prewitt Ridge is compelled by law to access or disclose Customer’s Confidential Information as part of a civil proceeding to which Customer is a party, Customer will reimburse Prewitt Ridge for the reasonable costs of compiling and providing secure access to such Confidential Information.
6.5. Equitable Relief. Recipient acknowledges that the remedy at law for breach of confidentiality under this Agreement may be inadequate and that, in addition to any other remedy Discloser may have, Discloser will be entitled to seek equitable relief, including, without limitation, temporary restraining orders or preliminary or permanent injunctions (without the requirement of posting a bond or other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of confidentiality by Recipient or any of its Representatives and to enforce confidentiality under this Agreement in addition to any other remedy to which Discloser is entitled at law or in equity.
6.6. Return of Confidential Information. Recipient must return or destroy (in Discloser’s sole discretion and direction) any Confidential Information disclosed to it and all copies thereof, promptly within 15 days following Discloser’s written demand for the return or destruction of its Confidential Information.
7. DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PREWITT RIDGE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING OUT OF COURSE OF DEAL OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. CUSTOMER ACKNOWLEDGES THAT PREWITT RIDGE DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES PERFORMANCE OR RESULTS ARE GUARANTEED, OR THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PREWITT RIDGE OR ANY SOURCE, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.1. Customer’s Indemnification Obligations. Customer will indemnify Prewitt Ridge and its parents, subsidiaries, affiliates, successors and assigns, and its and their directors, officers, employees, and agents (the “Prewitt Ridge Parties”) from and against any third party claim, demand, action, suit, or proceeding arising from or related to Customer’s or its End User’s breach or violation of this Agreement and will indemnify the Prewitt Ridge Parties for all damages, losses, or other liabilities finally awarded against the Prewitt Ridge Parties in connection with or as a result of such claim or any amounts paid by Prewitt Ridge under a settlement approved by Customer, including costs and expenses (including reasonable attorneys’ fees) incurred in connection with the defense or settlement of such claim. This section states Customer’s sole liability with respect to, and the Prewitt Ridge Parties’ exclusive remedy against Customer for, any such claim.
8.2. Prewitt Ridge’s Indemnification Obligations. Prewitt Ridge will indemnify Customer and its parents, subsidiaries, affiliates, successors and assigns, and its and their directors, officers, employees, and agents (the “Customer Parties”) from and against any third party claim, demand, action, suit, or proceeding alleging that the Services violate the intellectual property rights of such third party and will indemnify the Customer Parties for all damages, losses, or other liabilities finally awarded against the Customer Parties in connection with or as a result of such claim or any amounts paid by Customer under a settlement approved by Prewitt Ridge, including costs and expenses (including reasonable attorneys’ fees) incurred in connection with the defense or settlement of such claim. Notwithstanding the foregoing, Prewitt Ridge shall not be required to indemnify Customer hereunder to the extent the claim against Customer arises from (a) Customer Data; (b) Customer’s or its End User’s use of the Services in a manner that violates this Agreement; (c) use of the Services in a modified form or in combination with any third party product, service, or data not furnished to Customer by Prewitt Ridge; or (d) Prewitt Ridge’s compliance with any custom design or specifications provided by Customer. If the Services become, or in Prewitt Ridge’s reasonable opinion is likely to become, the subject of an infringement claim, then Prewitt Ridge may in its sole option and expense: (x) obtain the right for Customer to continue using the Services; (y) provide a non-infringing replacement with substantially equivalent functionally; or (z) modify the Services so that it is no longer infringing while maintaining substantially equivalent functionality. If Prewitt Ridge, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Prewitt Ridge may suspend or terminate this Agreement, in which case Prewitt Ridge’s sole liability (in addition to its indemnification obligations above) will be to provide Customer with a prorated refund of prepaid but unused fees applicable to the remaining portion of Customer’s current Subscription Period. This section states Prewitt Ridge’s sole liability with respect to, and Customer Parties’ exclusive remedy against Prewitt Ridge for, any infringement claim.
8.3. Indemnification Process. The party seeking indemnification (“Indemnified Party”) must provide prompt notice to the other party (“Indemnifying Party”) concerning the existence of an indemnifiable claim and provide Indemnifying Party with all documents, information, and assistance reasonably requested and fully cooperate with the Indemnifying Party in defending the claim. Failure to give prompt notice shall not constitute a waiver of Indemnified Party’s right to indemnification and will affect Indemnifying Party’s obligations under this Agreement only to the extent that Indemnifying Party’s rights are materially prejudiced by such failure or delay. Indemnifying Party will have full control and authority over the defense of any claim; provided, however, that any settlement requiring Indemnified Party to admit liability or make any financial payment shall require Indemnified Party’s prior written consent, not to be unreasonably withheld or delayed. Indemnified Party shall have the right to participate fully, at its own expense, in the defense of any claim.
9. LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY THEORY OF LIABILITY AND HOWEVER CAUSED, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, PROFITS, GOODWILL, DATA, USE, OR OTHER INTABGIBLE LOSSES, WHETHER OR NOT SUCH PARTY WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES WILL EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10. GENERAL PROVISIONS.
10.1. Headings. The headings in this Agreement are for reference only and shall not affect the construction or interpretation of this Agreement.
10.2. Force Majeure. Neither party will be liable for any delayed or inadequate performance of its obligation under this Agreement to the extent caused by a condition that is beyond such party’s reasonable control, including, without limitation, natural disaster, fire, flood, and other acts of God, war, armed conflict, terrorism, contagion, epidemic, pandemic, strikes, labor disputes, civil disturbances, government actions, power outages, interruption or failure of the Internet or any utility service, failure of third party service providers or hosting services, denial of service attacks, or other similar occurrences (each, a “Force Majeure Event”); provided that the party affected by such Force Majeure Event (a) is without fault in causing such delay or failure, (b) notifies the other party of the circumstances causing the Force Majeure Event, and (c) takes reasonable steps to mitigate the effects of the Force Majeure Event and resume performance as soon as practicable.
10.3. Governing Law; Venue; Waiver of Jury Trial. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. If for any reason an action proceeds in court rather than in arbitration, it must be brought exclusively in a state or federal court of competent jurisdiction located in Los Angeles County, California, and each party irrevocably consents to the exclusive personal jurisdiction and venue therein. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10.4. Mandatory Arbitration; Class Action Waiver. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Except for actions (a) to protect a party’s intellectual property, or (b) to enforce an arbitrator’s decision hereunder, Any dispute, CLAIM, or controversy arising out of or related to this Agreement must be submitted to and resolved exclusively by confidential binding arbitration before a single neutral arbitrator administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) in accordance with its then-prevailing Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The most recent version of the JAMS Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/, and are hereby incorporated into and made a part of this Agreement. If the Parties cannot agree upon selection of an arbitrator, then the Parties agree that JAMS will appoint an arbitrator experienced in the enterprise software industry. Arbitration will be conducted in English. The location of arbitration will be Los Angeles County, California, unless otherwise agreed by the Parties. Each Party agrees that the arbitration will be conducted in its individual capacity only and not as a class, consolidated, or other representative action. Each party expressly waives its right to file a class action or seek relief on a class basis, and no arbitrator may consolidate more than one person or entity’s claims or otherwise preside over any form of a representative or class proceeding, unless otherwise agreed by the Parties. Arbitration may be initiated by any party by giving to the other party written notice requesting arbitration, which notice shall also include a statement of the claims asserted and the facts upon which the claims are based. The arbitrator does not have any power to alter, amend, modify or change any of the terms or provisions of this Agreement. Except as prohibited in this Agreement, the arbitrator will have the authority to award any remedy or relief otherwise available in a court of law. The arbitrator must provide detailed written findings of fact and conclusions of law in support of any award. Any arbitrator's award will be binding on the parties, and may be entered as a judgment in any court of competent jurisdiction. Any party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. Except as may be required by law or to enforce an arbitration award, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek equitable or injunctive relief as permitted by this Agreement or under Applicable Laws from any court of competent jurisdiction. The Parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
10.5. Notices. Prewitt Ridge may provide general notices related to the Services that are applicable to all customers via email or in-app notifications and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Any other notices (including all notices from Customer) must be sent via email, registered or certified mail with return receipt requested and postage prepaid, or overnight courier to the addresses of the parties and are deemed given when received. Notices to Customer will be sent via email to the primary email address for Customer’s Account and to the address associated with Customer’s Account. Notices to Prewitt Ridge must be sent via email to email@example.com and to the following address: Prewitt Ridge Inc., Attn: Legal Department, 350 S. Grand Ave, Suite 1800, Los Angeles, CA 90071. General questions or requests for support in connection with the Services should be directed to firstname.lastname@example.org.
10.6. Publicity; Use of Customer Marks. Customer grants to Prewitt Ridge the right to use Customer’s name, trade names, and logo in Prewitt Ridge’s online customer list and in print and electronic marketing materials, subject to Prewitt Ridge’s compliance with applicable trademark usage guidelines or other instructions provided by Customer in writing regarding the proper use of its marks.
10.7. Relationship of the Parties. The parties are independent contractors in all matters relating to this Agreement. This Agreement does not create and will not be construed to create any partnership, joint venture, franchise, fiduciary, agency, employment, or any other relationship between the parties. Neither party has the authority to enter into any contract, incur any liability, make any representation, or otherwise act on behalf of, the other party. Each party is solely responsible for its Representatives (including, in the case of Customer, its End Users), and the foregoing’s compliance with the terms of this Agreement.
10.8. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Without limiting the generality of the foregoing, a Customer’s End Users are not third party beneficiaries to Customer’s rights under this Agreement.
10.9. No Election of Remedies. Except as expressly set forth in this Agreement, the exercise of either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or other rights and remedies available at law or in equity.
10.10. No Waivers. The failure or delay by either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of that or any other right or provision of this Agreement. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision.
10.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, under present or future law, such provision will be modified to the minimum extent necessary to remedy such invalidity, illegality, or unenforceability and interpreted so as best to accomplish the objectives of the original provision and original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement will continue in full force and effect and remain enforceable between the parties.
10.12. Assignment. This Agreement is not transferable or assignable by either party, whether in whole or in part, whether by operation of law or otherwise, for any purpose without the other party’s express prior written consent. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, upon written notice without the other party’s consent, to an affiliate or to its successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of such party’s assets or substantially similar transaction; provided, however, that should Customer assign this Agreement to any direct competitor of Prewitt Ridge, then Prewitt Ridge shall have the right to terminate this Agreement and Customer’s use of the Services upon written notice, in which case Prewitt Ridge will provide Customer’s assignee with a pro rata refund of any prepaid but unused fees Subscription Fees. Any other attempt to transfer or assign this Agreement or Customer’s Subscription to the Services will be null and void in each instance. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
10.13. Entire Agreement. This Agreement, including all attachments, exhibits, and addenda related hereto, constitutes the entire agreement between the parties concerning the subject matter herein and supersedes and replaces any prior or contemporaneous discussions, representations, proposals, negotiations, understandings, and agreements between the parties, whether written or oral, with respect to this subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any attachment, exhibit, or addendum related hereto, this Agreement will control. No terms or conditions stated in any Customer purchase order or other documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.
10.14. Modifications. Prewitt Ridge reserves the right to update or modify this Agreement from time to time by providing Customer with prior written notice of material changes, as determined in its sole discretion, at least 30 days in advance of the effective date. Notice will be given to all customers via email or in-app notification. Except as otherwise specified by Prewitt Ridge, the updated Agreement will be effective upon the stated effective date indicated at the top of the applicable Agreement, and when effective will supersede all prior versions. Prewitt Ridge may not be able to provide at least 30 days prior written notice of updates to this Agreement that result from changes in Applicable Laws. By continuing to utilize the Services, Customer’s continued access to or use of the Services after the effective date of the updated Agreement constitutes Customer’s acceptance of the updated Agreement. If Customer does not agree to any updates, Customer should immediately stop using the Services and promptly notify Prewitt Ridge in writing.