TERMS OF SERVICE
This Agreement is entered into between Prezent Inc. (“Prezent”) and your organization (“Customer”) as of the Effective Date (as defined below). If the individual accepting this Agreement is accepting on behalf of a company, government agency, or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to this Agreement, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual does not have such authority, or if the individual does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Prezent Product.
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Prezent for the Prezent Product.
“Effective Date” means the last date this Agreement is executed, upon executing an Order Form, by accessing or using the Service in any manner or by clicking “Accept and Get Started” (or a similar button or checkbox) for use of a Free Trial Service.
“Order Form” means an order form, quote or other similar document that sets forth the specific Prezent Product and pricing therefor, and that references this Agreement and is mutually executed by the parties.
2. Prezent Product
2.1 Provision of Prezent Product. Subject to the terms and conditions of this Agreement, Prezent will make the Prezent Product available to Customer pursuant to this Agreement, the SLA attached in Exhibit A and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Prezent Product for the creation of its presentations.
2.2 Data Security.
(a) Prezent will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Prezent Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Prezent’s security safeguards include measures for preventing access, use, modification or disclosure of Customer Data by Prezent personnel except (a) to provide the Prezent Product and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Customer expressly permits in writing or under this Agreement. Prezent will not materially diminish the protections provided in this Section during the term of this Agreement.
(b) To the extent that Prezent processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to the GDPR (as defined in the DPA), on Customer’s behalf, in the provision of the Prezent Product, the parties will execute a Data Processing Addendum (“DPA”), and attach such DPA to this Agreement.
2.3 Customer Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”). Customer will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Prezent Product;
(b) attempt to probe, scan or test the vulnerability of the Prezent Product, breach the security or authentication measures of the Prezent Product without proper authorization or wilfully render any part of the Prezent Product unusable;
(c) use or access the Prezent Product to develop a product or service that is competitive with Prezent’s products or Product or engage in competitive analysis or benchmarking;
(d) transfer, distribute, resell, lease, license, or assign Prezent Product or otherwise offer the Prezent Product on a standalone basis; or
(e) otherwise use the Prezent Product outside the scope expressly permitted hereunder and in the applicable Order Form.
2.4 Customer Responsibilities.
(a) Customer acknowledges that Prezent’s provision of the Prezent Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s applications, software systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) be responsible for all use of the Prezent Product under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Prezent Product and notify Prezent promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Prezent Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Prezent will have no liability for such failure (including under any service level agreement, if applicable). In addition, Customer will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the Prezent Product.
(c) Customer will not use the Prezent Product to transmit or provide to Prezent any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
2.5 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Prezent and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
3.1 Fees. Customer will pay Prezent the fees set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
3.2 Late Payment. Prezent may suspend access to the Prezent Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Prezent. Customer will not withhold any taxes from any amounts due to Prezent.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Prezent exclusively owns all right, title and interest in and to the Prezent Product and Prezent’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information.
4.2 Feedback. Customer may from time to time provide Prezent suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Prezent Product. Prezent will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Prezent will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.4 Machine Learning. Customer acknowledges that a fundamental component of the Prezent Product is the use of machine learning for the purpose of improving and providing Prezent’s products and services. Notwithstanding anything to the contrary, Customer agrees that Prezent is hereby granted the right to use (during and after the term hereof) information related to presentations submitted hereunder to train its algorithms internally through machine learning techniques for such purpose.
4.5 Performance Metrics. Customer further agrees that Prezent has the right to aggregate, collect and analyze data and other information relating to the performance of the Prezent Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Prezent’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
4.6 Third Party Services. The Prezent Product may provide links or other access to services, sites, technology, and resources that are provided or otherwise made available by third parties (the “Third-Party Services”). Customer’s access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. In any event, Customer agrees that its use of such Third-Party Services shall be at all times subject to the same restrictions upon use as the restrictions that apply to the Prezent Product contained in Section 2.3 of this Agreement.
5. Warranties and Disclaimers
5.1 Prezent. Prezent warrants that it will, consistent with prevailing industry standards, perform the Prezent Product in a professional and workmanlike manner and the Prezent Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient Prezent Product or, if Prezent cannot re-perform such deficient Prezent Product as warranted, Customer shall be entitled to terminate the applicable Order Form in accordance with Section 8.2(a) and recover a pro-rata portion of the fees paid to Prezent for such deficient Prezent Product.
5.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Prezent to use the same as contemplated hereunder.
5.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE PREZENT PRODUCT IS BASED ON PREDICTIVE STATISTICAL MODELS, AND ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S USERS PRESENTATION CREATION AND DEVELOPMENT. THE PREZENT PRODUCT MAY CONTAIN BUGS, MAKE ERRORS OR MISINTERPRET CERTAIN PRESENTATION ISSUES OR PATTERNS, AND IN SUCH CASES PREZENT CAN DISENGAGE ANY FUNCTIONALITY OF THE PREZENT PRODUCT AT CUSTOMER’S REQUEST. PREZENT DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL PRESENTATION CREATION OR DEVELOPMENT ISSUES WILL BE RESOLVED OR THAT HUMAN INTERVENTION WILL NOT BE REQUIRED.
5.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH PREZENT WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY PREZENT. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. PREZENT DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR PREZENT MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
6.1 Indemnity by Prezent. Prezent will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Prezent Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Prezent) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Prezent of such Claim, (b) Prezent will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Prezent may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Prezent in connection therewith. If the use of the Prezent Product by Customer has become, or in Prezent’s opinion is likely to become, the subject of any claim of infringement, Prezent may at its option and expense (i) procure for Customer the right to continue using and receiving the Prezent Product as set forth hereunder; (ii) replace or modify the Prezent Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Prezent will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Prezent Product by Customer not in accordance with this Agreement; (C) modification of the Prezent Product by any party other than Prezent without Prezent’s express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the Prezent Product with other applications, portions of applications, product(s) or services where the Prezent Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Prezent’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Prezent against any Claim made or brought against Prezent by a third party arising out of the Excluded Claims, and Customer will indemnify Prezent for any damages finally awarded against (or any settlement approved by Customer) Prezent in connection with any such Claim; provided that (a) Prezent will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Prezent’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Prezent of all liability) and (c) Prezent reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. The list price may increase at renewal, and any discount applied during your initial term may no longer apply.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Prezent Product.
9.2 Publicity. Customer agrees that Prezent may refer to Customer’s name and trademarks in Prezent’s marketing materials and website; however, Prezent will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Prezent with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Prezent, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.11 Government Terms. Prezent provides the Prezent Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Prezent Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Prezent Product was developed fully at private expense.
9.12 Service Capacity. 1 user per account. Prezent reserves the right to implement overage fees and penalties for any additional users accessing an account in violation of this Service Capacity.
9.13 Interpretation. For purposes hereof, “including” means “including without limitation”.
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