TERMS OF USE
Last Updated: November 14, 2022
Acceptance of the Terms of Use.
Welcome! By accessing or using the platform, website and/or the mobile application offered by Prefix Maintenance Inc. (“
Prefix,” “
we,” “
us” or “
our”) and all associated pages and services (collectively referred to as our “
Website”) and/or through the mobile application that you have downloaded, including all software therein (the “
Mobile Application”), the Mobile Application and Website collectively referred to as the “
Services”, you
(the
“
User”, “
your” or
“
you”) confirm that you have read, understand and agree to be bound by these terms of use (“
Terms of Use”).
Please read the Terms of Use carefully and print a copy for your records. To view Prefix’s privacy practices, please visit our Privacy Policy, available at:
https://useprefix.com/privacy.
IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 15 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND PREFIX HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST PREFIX TO BINDING AND FINAL ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST PREFIX ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 15 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 15 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Changes to these Terms of Use.
By accessing our Services, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. Your continued use of the Services following our posting of any such changes will mean that you accept such changes. Notwithstanding the foregoing, we may notify you at the email address provided to us or by a posting in the Mobile Application or Website in the event that we make any material changes to these Terms of Use, and you may have to agree to or reject the updated Terms of Use at that time, in order to continue using the Services.
Mobile Application.
If the User has elected to download our Mobile Application, we hereby grant you a limited, non-transferable, revocable license to use the object code of such software within the Mobile Application on any mobile device that you own or control that such Mobile Application is authorized to be operated on (as determined by us in our sole discretion) and is permitted by this Section 3. The Mobile Application is licensed, not sold, to you for use only under the terms of this Terms of Use. Prefix reserves all rights, title and interest not expressly granted to you. Nothing herein allows you to use the Mobile Application on a device that you do not own or are not authorized to control. Furthermore, with respect to any Mobile Application accessed through or downloaded from an App Store such as Google Play® store or the Apple’s® App Store® (an “
App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “
Usage Rules” set forth in the corresponding App Store. Use of the Mobile Application from a third party App Store is also subject to the provisions of Section 10 (App Store).
The Services are For Use by Individuals 18 Years of Age and Older.
While Prefix stores, processes and transfers data of individuals of all age, including data regarding children based on their guardian’s or parent’s consent, the Services are intended solely to be accessed by natural persons who are eighteen (18) years of age or older, and any registration by, use of, or access to the Services by any person under 18 is unauthorized and in violation of these Terms of Use. We may terminate your use of the Services without notice if we believe you are less than 18 years old. By using the Services, you represent and warrant that, you are a natural person, you are 18 or older, and that you agree to and will abide by all of the terms and conditions of these Terms of Use.
Services Use Restrictions.
Without our prior written consent, you may not:Use any automated means to access this Services or collect any information from the Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any Services’ pages, or otherwise affect the display of any pages on the Services;Engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;Use the Services in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; orAccess, use or monitor our Services for benchmarking or any competitive purposes.
We may terminate or disable your access to these Services for any reason, with or without cause, including if we believe that you have violated or acted inconsistently with these Terms of Use.
User Representations.
Parts of the Services may be accessed only by registering for an account and creating a password. Keep your password secure. You are responsible for the activities on your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Services will violate or infringe upon the rights of any third party, including without limitation any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account.In addition, you agree not to use the Services to:Except where authorized by us, register for more than one User account, register or operate a User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name;
Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;
Upload, post, transmit, share, store, or otherwise make publicly available through the Services any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers, unless expressly authorized to do so by that third party;
Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Services; or Use or attempt to use another’s account without authorization from that person, or create a false identity through the Services.
Information Posted through the Services.
As between us and you, all content made available on or through the Services, whether uploaded, published, or displayed by us, including designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement, except as provided in Section 10 (App Store) is the property of Prefix (collectively the “
Prefix Content”). To the best of our knowledge, we use only content that we own or have permission to use. No Prefix Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the owner’s prior written permission. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.You are solely responsible for the information that you post on or through the Services and your conduct regarding the Services. By posting information to or through the Services, you agree to (a) provide accurate, current, and complete information; (b) maintain the security of your password and identification, to the extent you are provided a password and identification; (c) promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Services; and (d) be fully responsible for all use of your account and for any actions that take place using your account.Subject to the published functionality, you may establish and access certain portal accounts related to your information. Such accounts may integrate or connect to third party sites. In addition, the Services provide access to payment processing that is hosted and provided by third party service providers. As made available to you, third party service providers have additional terms and conditions that are different than these terms. To the extent not restricted by law or applicable agreements with third parties, Prefix is not responsible or liable for any third party acts or omissions or services they may provide you.The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “
Third-Party Links & Ads”). Where the Services contain links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Prefix does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk.
You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms of Use.
Consent to be Contacted.
To the extent required by applicable law, we ensure we make the proper disclosures and obtain consumer consent when collecting your contact information.
Intellectual PropertyTrademarks
The “Prefix” name and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress in the United States. Prefix’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Prefix.
Submissions
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“
Submissions”), provided by you to us through the Services are non-confidential and shall become the sole property of Prefix. Prefix shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Copyright Complaints
If you believe that any material on the Services infringes upon any copyright which you own or control, you may send a written notification of such infringement to our designated agent as set forth below:
support@useprefix.com
To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication including the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
App Store.When you download our Apps, you may do so through a third party’s online application store (“
App Store”). You acknowledge that these Terms of Use are between you and us and not with the owner or operator of the App Store (“
App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless or cellular network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 3): Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Prefix and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Prefix. You and we acknowledge that, as between Prefix and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Prefix and the App Store Owner, Prefix, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of these Terms of Use as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms of Use, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms of Use as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.Without limiting any other terms in these Terms of Use, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Disclaimers.
We reserve the right to change any and all content within the Services and any service offered through the Services at any time without notice.We provide the Services “AS IS” and assume no responsibility for any failure to provide the Services to you. The Services may be temporarily unavailable from time to time for maintenance or other reasons. We may discontinue the Services or any goods or services available through the Services at any time and for any reason. We are not responsible for any problems or technical malfunction of any telephone or cable network or lines, servers or providers, computer equipment, software, failure of email, or technical problems or traffic congestion on the Internet or on or through the Services, including injury or damage to Users or to any other person’s devices related to or resulting from use of the Services.Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any user data, financial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Services. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, and that we
EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.
Limitation of Certain Damage Types.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL PREFIX OR ANY OF ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability Amount.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE SERVICES OR PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND $20. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR A SERVICE OR PRODUCT, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION.NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
Disputes, Governing Law, Venue, and Jurisdiction.By using the Services, you agree that these Terms of Use shall be governed by the laws of the State of Delaware
without regard to its conflict of law provisions.For any cause of action initiated against Prefix relating to these Terms of Use, you and Prefix agree to submit to the exclusive and personal jurisdiction of the courts located in Delaware
.Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then we nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.
Arbitration Agreement & Dispute ResolutionPlease read this Arbitration Agreement carefully. It is part of your contract with Prefix and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Scope of Arbitration Agreement (“Arbitration Agreement”). You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Prefix will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Prefix may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior agreement.
NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST PREFIX ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH PREFIX, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PREFIX IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at Prefix Maintenance Inc, 580 Fifth Avenue, Suite 820, New York, NY 10036. The arbitration will be conducted by the American Arbitration Association (“
AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at
www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, Prefix will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Prefix. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Prefix.
Waiver of Jury Trial. YOU AND PREFIX EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Prefix are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Prefix over whether to vacate or enforce an arbitration award, you and Prefix waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Prefix is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 14 (Disputes, Governing Law, Venue and Jurisdiction) above.
Exclusive Venue. To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, both you and Prefix agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in Delaware.
Indemnity.
To the maximum extent permitted by law, you agree to indemnify and hold us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs (including attorneys’ fees), and expenses, arising out of or in connection with your use of the Services or any violation of these Terms of Use.PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
Survival. The following Sections survive the termination of these Terms of Use: 8, 9, 11 through 17.
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TERMS OF SERVICEPlease read these Terms of Service (these “
Terms”) carefully. These Terms govern Prefix’s provision of software and services, and Customer’s (as defined below) use thereof, as set forth in an Order Form (as defined below) executed between Prefix Maintenance, Inc. (“
Prefix” or “
we”) and Customer. TOGETHER, THESE TERMS AND ANY ORDER FORM(S) CONSTITUTE THE “
AGREEMENT.” THE AGREEMENT IS EFFECTIVE AS OF THE ORDER FORM EFFECTIVE DATE (AS DEFINED AND SET FORTH IN THE INITIAL ORDER FORM). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE ORDER FORM. BY EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS BY REFERENCE AND/OR OTHERWISE USING THE SERVICES, THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“
CUSTOMER” or “
YOU”) IS AGREEING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE LICENSES, AND NOT THIS AGREEMENT. YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF PREFIX, EXCEPT WITH PREFIX‘S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Prefix Solution.
“Applicable Data Protection Laws” means any applicable US state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of Personal Data.
“Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Prefix Solution pursuant to Customer’s rights under this Agreement.
“Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
“Documentation” means the technical materials provided by Prefix to Customer, if any, in hard copy or electronic form describing the use and operation of the Prefix Solution.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
“Order Form” means an order form that is signed by both parties and references this Agreement.
“Personal Data” means any Customer Content, whether in electronic or paper-based form that constitutes “personal data,” “personal information,” or “personally identifiable information” or similar information governed by Applicable Data Protection Laws. For clarity, Personal Data does not include information pertaining to Customer’s business contacts and/or representatives who are Customer personnel where Prefix has determined what information to collect and for what purposes.
“Prefix Solution” means the software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface or mobile application.
“Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
“Professional Services” means professional services provided by Prefix to Customer as described in any Order Form (as may be further elaborated in any SOW), including services relating to the Prefix Solution and support, implementation, training, and on-boarding thereof.
“Services” means any services provided by Prefix to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Prefix Solution and Professional Services.
2. PROVISION OF SERVICES.2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form (“
Fees”), Prefix will provide Customer with access to the Prefix Solution via a web browser. On or as soon as reasonably practicable after the Commencement Date, Prefix will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Prefix Solution in accordance with the Access Protocols; provided that nothing herein will be construed to require Prefix to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Prefix Solution from the Internet.
2.2 Support Services. Subject to the terms and conditions of this Agreement, Prefix will exercise commercially reasonable efforts to (a) provide support for the use of the Prefix Solution to Customer, and (b) keep the Prefix Solution operational and available to Customer, in each case in accordance with its then-current standard policies and procedures.
3. INTELLECTUAL PROPERTY.3.1 License Grant. Subject to the terms and conditions of this Agreement, Prefix grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Prefix Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Prefix Solution. Customer may permit any Authorized Users to access and use the features and functions of the Prefix Solution as contemplated by this Agreement; provided Customer will be solely responsible for all acts or omissions of its Authorized Users with respect to the use of the Prefix Solution.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Prefix Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Prefix Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Prefix Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Prefix Solution, except as permitted by law; (e) interfere in any manner with the operation of the Prefix Solution or the hardware and network used to operate the Prefix Solution; (f) modify, copy or make derivative works based on any part of the Prefix Solution or Documentation; (g) access or use the Prefix Solution to build a similar or competitive product or service; (h) attempt to access the Prefix Solution through any unapproved interface; or (i) otherwise use the Prefix Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3 (License Grant) or in a manner inconsistent with applicable law (including, without limitation, Applicable Data Protection Laws), the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Prefix or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The Prefix Solution, Licensed Materials and Documentation, and all enhancements and improvements thereto, and worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Prefix and its suppliers. All rights in and to the Prefix Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Prefix and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Prefix Solution, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Prefix grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
3.5 Open Source Software. Certain items of software may be provided to Customer with the Prefix Solution and are subject to “open source” or “free software” licenses (
“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Prefix makes such Open Source Software, and Prefix’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to Prefix a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Prefix will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS.4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Prefix under this Agreement, Customer will pay to Prefix the Fees. Except as otherwise provided in the Order Form, all Fees are billed monthly and due and payable within thirty (30) days of the date of the invoice. Prefix will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Prefix has furnished such documentation for authorized expenses as Customer may reasonably request. Prefix reserves the right (in addition to any other rights or remedies Prefix may have) to discontinue the Prefix Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. Except as provided in an Order Form, fees are not refundable.
4.2 Payment Processing. From time to time Prefix may use certain third parties to provide payment services (e.g., card acceptance, merchant settlement and related services) (“
Payment Processors”). By selecting certain billing and/or payments features, Customer agrees to comply with the terms and conditions and policies of the Payment Processors used by Prefix, and hereby consents and authorizes Prefix to share any information and payment instructions provided herein with Payment Processors to the minimum extent required to complete Customer’s transactions hereunder.
4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Prefix’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Prefix Solution to Customer. Customer will make all payments of Fees to Prefix free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Prefix will be Customer’s sole responsibility, and Customer will provide Prefix with official receipts issued by the appropriate taxing authority, or such other evidence as the Prefix may reasonably request, to establish that such taxes have been paid.
4.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT AND RESPONSIBILITIES.5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Prefix to collect, access, use, and otherwise Process the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for providing all notices to, and obtaining from, third parties, including, without limitations its customers, all necessary rights and consents for Prefix to use the Customer Content for the purposes set forth in this Agreement (including, without limitation, all notices and consents required under Applicable Data Protection Laws). Customer grants Prefix a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, (b) to use the Customer trademarks, service marks, and logos as required to provide the Services, or in promotional materials marketing websites and the like, and (c) derive aggregated, de-identified and/or anonymized data from Customer Content (“
Derived Data”). Prefix will be the sole owner of all such Derived Data and will have the right to use such Derived Data for any lawful business purpose. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Prefix in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Prefix’s system or data; and (e) otherwise violate the rights of a third party. Prefix is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Prefix Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 Customer Warranty) constitutes unauthorized and improper use of the Prefix Solution.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Prefix Solution. Customer will have the ability to export its own Customer Content out of the Prefix Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
5.4 Customer Responsibility for Operating its Own Business. Customer acknowledges that it, and not Prefix, is responsible for operating Customer’s own business, including with respect to obtaining all licenses, permits and other governmental registrations to enable its use of the Services. The Prefix Solution is not intended to be used as advice as to whether to engage in any particular transaction.
6. PROFESSIONAL SERVICES. Where the parties have agreed to Prefix’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (
“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
7. DATA SECURITY; PRIVACY.7.1 Data Security. During the Term, Prefix will maintain commercially reasonable safeguards and procedures designed to prevent the unauthorized use or disclosure of Personal Data (“
Data Safeguards”). During the Term, Prefix will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.
7.2 Privacy. Without limiting Customer’s obligations under Sections 2 (Provision of Services), and 2.1 (Intellectual Property), each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under this Agreement with respect to the Processing of Personal Data. The sale, retention, use or disclosure of Personal Data shall be governed by this Agreement and, as applicable, Prefix’s Privacy Policy, as in effect from time to time, and located at
http://useprefix.com/privacy.
7.3 General Terms and Conditions. The parties expressly acknowledge and agree that this Order Form, appendices attached, and any amendments hereto signed by the parties, is subject to and conditioned upon Customer’s agreement to the terms and conditions of that certain Master Services Agreement General Terms and Conditions (the “
Agreement”) appearing at:
http://useprefix.com/terms. By signing below, Customer expressly acknowledges and agrees that it has reviewed the Agreement and agrees to be bound by the terms and conditions contained therein. Customer further acknowledges and agrees that by signing below, the person signing this Order Form has the authority to execute this Order Form on behalf of Customer. This Order Form may not be amended or modified, except in a writing signed by both Parties.
8. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH CUSTOMER. PREFIX EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. PREFIX DOES NOT WARRANT THAT OPERATION OF THE PREFIX SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
9. LIMITATION OF LIABILITY9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO PREFIX DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL PREFIX’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10. CONFIDENTIALITY.10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the
“Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the
“Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Prefix.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Prefix). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11. INDEMNIFICATION.11.1 By Prefix. Prefix will defend at its expense any suit brought against Customer, and will pay any settlement Prefix makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Prefix Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Prefix Solution becomes, or in the opinion of Prefix is likely to become, the subject of a claim of infringement, Prefix may, at the option of Prefix: (a) procure for Customer the right to continue using the Prefix Solution; (b) replace the Prefix Solution with non-infringing software or services which do not materially impair the functionality of the Prefix Solution; (c) modify the Prefix Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Prefix Solution and Documentation. Notwithstanding the foregoing, Prefix will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Prefix Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Prefix Solution in combination with other products, equipment, software or data not supplied by Prefix; or (iii) any modification of the Prefix Solution by any person other than Prefix or its authorized agents (collectively, the
“Exclusions” and each, an
“Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Prefix, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 By Customer. Customer will defend at its expense any suit brought against Prefix, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s breach or alleged breach of Sections 5.2 (Customer Warranty) or 14.6 (Compliance with Law); or (c) claims for bodily injury or damage to physical property, to the extent (i) alleged to be caused by Customer’s or any other party’s use of the Prefix Solution; or (ii) caused by the acts or omissions of Customer, its employees, officers or agents. This section states the sole and exclusive remedy of Prefix and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
11.3 Procedure. The indemnifying party’s obligations as set forth above
are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. TERM AND TERMINATION.12.1 Term. This Agreement will begin on the Order Form Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the
“Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the Commencement Date set forth in the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with this Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
12.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality);
and (c) any amounts owed to Prefix under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 4 (Fees and Expenses; Payments), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.2 (Termination for Breach), 12.3 (Effect of Termination), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
12.4 Data Extraction. For twenty (20) days after the end of the Term, as applicable, Prefix will make Customer Content available to Customer through the Prefix Solution on a limited basis solely for purposes of Customer retrieving Customer Content, unless Prefix is instructed by Customer to delete such data before that period expires. After such period, Prefix will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession.
13. MISCELLANEOUS.13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Prefix arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Prefix, or any products utilizing such data, in violation of the United States export laws or regulations.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.6 Compliance with Law. Customer will, and will ensure that all Authorized Users, always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its and their purchase and use of the Services, Licensed Material and Documentation.
13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.8 Independent Contractors. Customer’s relationship to Prefix is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Prefix.
13.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Prefix, by emailing
jared@useprefix.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
13.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Prefix.
Please read the Terms of Use carefully and print a copy for your records. To view Prefix’s privacy practices, please visit our Privacy Policy, available at:
https://useprefix.com/privacy.
IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 15 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND PREFIX HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST PREFIX TO BINDING AND FINAL ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST PREFIX ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 15 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 15 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Changes to these Terms of Use.
By accessing our Services, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. Your continued use of the Services following our posting of any such changes will mean that you accept such changes. Notwithstanding the foregoing, we may notify you at the email address provided to us or by a posting in the Mobile Application or Website in the event that we make any material changes to these Terms of Use, and you may have to agree to or reject the updated Terms of Use at that time, in order to continue using the Services.
Mobile Application.
If the User has elected to download our Mobile Application, we hereby grant you a limited, non-transferable, revocable license to use the object code of such software within the Mobile Application on any mobile device that you own or control that such Mobile Application is authorized to be operated on (as determined by us in our sole discretion) and is permitted by this Section 3. The Mobile Application is licensed, not sold, to you for use only under the terms of this Terms of Use. Prefix reserves all rights, title and interest not expressly granted to you. Nothing herein allows you to use the Mobile Application on a device that you do not own or are not authorized to control. Furthermore, with respect to any Mobile Application accessed through or downloaded from an App Store such as Google Play® store or the Apple’s® App Store® (an “
App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “
Usage Rules” set forth in the corresponding App Store. Use of the Mobile Application from a third party App Store is also subject to the provisions of Section 10 (App Store).
The Services are For Use by Individuals 18 Years of Age and Older.
While Prefix stores, processes and transfers data of individuals of all age, including data regarding children based on their guardian’s or parent’s consent, the Services are intended solely to be accessed by natural persons who are eighteen (18) years of age or older, and any registration by, use of, or access to the Services by any person under 18 is unauthorized and in violation of these Terms of Use. We may terminate your use of the Services without notice if we believe you are less than 18 years old. By using the Services, you represent and warrant that, you are a natural person, you are 18 or older, and that you agree to and will abide by all of the terms and conditions of these Terms of Use.
Services Use Restrictions.
Without our prior written consent, you may not:Use any automated means to access this Services or collect any information from the Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any Services’ pages, or otherwise affect the display of any pages on the Services;Engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;Use the Services in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; orAccess, use or monitor our Services for benchmarking or any competitive purposes.
We may terminate or disable your access to these Services for any reason, with or without cause, including if we believe that you have violated or acted inconsistently with these Terms of Use.
User Representations.
Parts of the Services may be accessed only by registering for an account and creating a password. Keep your password secure. You are responsible for the activities on your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Services will violate or infringe upon the rights of any third party, including without limitation any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account. In addition, you agree not to use the Services to: Except where authorized by us, register for more than one User account, register or operate a User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name;
Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;
Upload, post, transmit, share, store, or otherwise make publicly available through the Services any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers, unless expressly authorized to do so by that third party;
Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Services; or Use or attempt to use another’s account without authorization from that person, or create a false identity through the Services.
Information Posted through the Services.
As between us and you, all content made available on or through the Services, whether uploaded, published, or displayed by us, including designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement, except as provided in Section 10 (App Store) is the property of Prefix (collectively the “
Prefix Content”). To the best of our knowledge, we use only content that we own or have permission to use. No Prefix Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the owner’s prior written permission. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. You are solely responsible for the information that you post on or through the Services and your conduct regarding the Services. By posting information to or through the Services, you agree to (a) provide accurate, current, and complete information; (b) maintain the security of your password and identification, to the extent you are provided a password and identification; (c) promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Services; and (d) be fully responsible for all use of your account and for any actions that take place using your account. Subject to the published functionality, you may establish and access certain portal accounts related to your information. Such accounts may integrate or connect to third party sites. In addition, the Services provide access to payment processing that is hosted and provided by third party service providers. As made available to you, third party service providers have additional terms and conditions that are different than these terms. To the extent not restricted by law or applicable agreements with third parties, Prefix is not responsible or liable for any third party acts or omissions or services they may provide you. The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “
Third-Party Links & Ads”). Where the Services contain links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Prefix does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk.
You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms of Use.
Consent to be Contacted.
To the extent required by applicable law, we ensure we make the proper disclosures and obtain consumer consent when collecting your contact information.
Intellectual PropertyTrademarks
The “Prefix” name and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress in the United States. Prefix’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Prefix.
Submissions
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“
Submissions”), provided by you to us through the Services are non-confidential and shall become the sole property of Prefix. Prefix shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Copyright Complaints
If you believe that any material on the Services infringes upon any copyright which you own or control, you may send a written notification of such infringement to our designated agent as set forth below:
support@useprefix.com
To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication including the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
App Store.When you download our Apps, you may do so through a third party’s online application store (“
App Store”). You acknowledge that these Terms of Use are between you and us and not with the owner or operator of the App Store (“
App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless or cellular network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 3): Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Prefix and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Prefix. You and we acknowledge that, as between Prefix and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Prefix and the App Store Owner, Prefix, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of these Terms of Use as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms of Use, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms of Use as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties. Without limiting any other terms in these Terms of Use, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Disclaimers.
We reserve the right to change any and all content within the Services and any service offered through the Services at any time without notice. We provide the Services “AS IS” and assume no responsibility for any failure to provide the Services to you. The Services may be temporarily unavailable from time to time for maintenance or other reasons. We may discontinue the Services or any goods or services available through the Services at any time and for any reason. We are not responsible for any problems or technical malfunction of any telephone or cable network or lines, servers or providers, computer equipment, software, failure of email, or technical problems or traffic congestion on the Internet or on or through the Services, including injury or damage to Users or to any other person’s devices related to or resulting from use of the Services. Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any user data, financial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Services. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, and that we
EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.
Limitation of Certain Damage Types.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL PREFIX OR ANY OF ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability Amount.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE SERVICES OR PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND $20. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR A SERVICE OR PRODUCT, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION.NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
Disputes, Governing Law, Venue, and Jurisdiction.By using the Services, you agree that these Terms of Use shall be governed by the laws of the State of Delaware
without regard to its conflict of law provisions.For any cause of action initiated against Prefix relating to these Terms of Use, you and Prefix agree to submit to the exclusive and personal jurisdiction of the courts located in Delaware
.Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then we nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.
Arbitration Agreement & Dispute Resolution Please read this Arbitration Agreement carefully. It is part of your contract with Prefix and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Scope of Arbitration Agreement (“Arbitration Agreement”).
You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Prefix will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Prefix may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior agreement.
NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST PREFIX ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH PREFIX, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PREFIX IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at Prefix Maintenance Inc, 580 Fifth Avenue, Suite 820, New York, NY 10036. The arbitration will be conducted by the American Arbitration Association (“
AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at
www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, Prefix will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Prefix. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Prefix.
Waiver of Jury Trial. YOU AND PREFIX EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Prefix are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Prefix over whether to vacate or enforce an arbitration award, you and Prefix waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Prefix is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 14 (Disputes, Governing Law, Venue and Jurisdiction) above.
Exclusive Venue.
To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, both you and Prefix agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in Delaware.
Indemnity.
To the maximum extent permitted by law, you agree to indemnify and hold us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs (including attorneys’ fees), and expenses, arising out of or in connection with your use of the Services or any violation of these Terms of Use.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
Survival. The following Sections survive the termination of these Terms of Use: 8, 9, 11 through 17.
TERMS OF SERVICE
Please read these Terms of Service (these “
Terms”) carefully. These Terms govern Prefix’s provision of software and services, and Customer’s (as defined below) use thereof, as set forth in an Order Form (as defined below) executed between Prefix Maintenance, Inc. (“
Prefix” or “
we”) and Customer. TOGETHER, THESE TERMS AND ANY ORDER FORM(S) CONSTITUTE THE “
AGREEMENT.” THE AGREEMENT IS EFFECTIVE AS OF THE ORDER FORM EFFECTIVE DATE (AS DEFINED AND SET FORTH IN THE INITIAL ORDER FORM). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE ORDER FORM. BY EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS BY REFERENCE AND/OR OTHERWISE USING THE SERVICES, THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“
CUSTOMER” or “
YOU”) IS AGREEING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE LICENSES, AND NOT THIS AGREEMENT. YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF PREFIX, EXCEPT WITH PREFIX‘S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Prefix Solution.
“Applicable Data Protection Laws” means any applicable US state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of Personal Data.
“Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Prefix Solution pursuant to Customer’s rights under this Agreement.
“Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
“Documentation” means the technical materials provided by Prefix to Customer, if any, in hard copy or electronic form describing the use and operation of the Prefix Solution.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
“Order Form” means an order form that is signed by both parties and references this Agreement.
“Personal Data” means any Customer Content, whether in electronic or paper-based form that constitutes “personal data,” “personal information,” or “personally identifiable information” or similar information governed by Applicable Data Protection Laws. For clarity, Personal Data does not include information pertaining to Customer’s business contacts and/or representatives who are Customer personnel where Prefix has determined what information to collect and for what purposes.
“Prefix Solution” means the software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface or mobile application.
“Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
“Professional Services” means professional services provided by Prefix to Customer as described in any Order Form (as may be further elaborated in any SOW), including services relating to the Prefix Solution and support, implementation, training, and on-boarding thereof.
“Services” means any services provided by Prefix to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Prefix Solution and Professional Services.
2. PROVISION OF SERVICES.
2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form (“
Fees”), Prefix will provide Customer with access to the Prefix Solution via a web browser. On or as soon as reasonably practicable after the Commencement Date, Prefix will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Prefix Solution in accordance with the Access Protocols; provided that nothing herein will be construed to require Prefix to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Prefix Solution from the Internet.
2.2 Support Services. Subject to the terms and conditions of this Agreement, Prefix will exercise commercially reasonable efforts to (a) provide support for the use of the Prefix Solution to Customer, and (b) keep the Prefix Solution operational and available to Customer, in each case in accordance with its then-current standard policies and procedures.
3. INTELLECTUAL PROPERTY.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Prefix grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Prefix Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Prefix Solution. Customer may permit any Authorized Users to access and use the features and functions of the Prefix Solution as contemplated by this Agreement; provided Customer will be solely responsible for all acts or omissions of its Authorized Users with respect to the use of the Prefix Solution.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Prefix Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Prefix Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Prefix Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Prefix Solution, except as permitted by law; (e) interfere in any manner with the operation of the Prefix Solution or the hardware and network used to operate the Prefix Solution; (f) modify, copy or make derivative works based on any part of the Prefix Solution or Documentation; (g) access or use the Prefix Solution to build a similar or competitive product or service; (h) attempt to access the Prefix Solution through any unapproved interface; or (i) otherwise use the Prefix Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3 (License Grant) or in a manner inconsistent with applicable law (including, without limitation, Applicable Data Protection Laws), the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Prefix or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The Prefix Solution, Licensed Materials and Documentation, and all enhancements and improvements thereto, and worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Prefix and its suppliers. All rights in and to the Prefix Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Prefix and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Prefix Solution, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Prefix grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
3.5 Open Source Software. Certain items of software may be provided to Customer with the Prefix Solution and are subject to “open source” or “free software” licenses (
“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Prefix makes such Open Source Software, and Prefix’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to Prefix a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Prefix will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS.4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Prefix under this Agreement, Customer will pay to Prefix the Fees. Except as otherwise provided in the Order Form, all Fees are billed monthly and due and payable within thirty (30) days of the date of the invoice. Prefix will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Prefix has furnished such documentation for authorized expenses as Customer may reasonably request. Prefix reserves the right (in addition to any other rights or remedies Prefix may have) to discontinue the Prefix Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. Except as provided in an Order Form, fees are not refundable.
4.2 Payment Processing. From time to time Prefix may use certain third parties to provide payment services (e.g., card acceptance, merchant settlement and related services) (“
Payment Processors”). By selecting certain billing and/or payments features, Customer agrees to comply with the terms and conditions and policies of the Payment Processors used by Prefix, and hereby consents and authorizes Prefix to share any information and payment instructions provided herein with Payment Processors to the minimum extent required to complete Customer’s transactions hereunder.
4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Prefix’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Prefix Solution to Customer. Customer will make all payments of Fees to Prefix free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Prefix will be Customer’s sole responsibility, and Customer will provide Prefix with official receipts issued by the appropriate taxing authority, or such other evidence as the Prefix may reasonably request, to establish that such taxes have been paid.
4.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT AND RESPONSIBILITIES.5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Prefix to collect, access, use, and otherwise Process the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for providing all notices to, and obtaining from, third parties, including, without limitations its customers, all necessary rights and consents for Prefix to use the Customer Content for the purposes set forth in this Agreement (including, without limitation, all notices and consents required under Applicable Data Protection Laws). Customer grants Prefix a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, (b) to use the Customer trademarks, service marks, and logos as required to provide the Services, or in promotional materials marketing websites and the like, and (c) derive aggregated, de-identified and/or anonymized data from Customer Content (“
Derived Data”). Prefix will be the sole owner of all such Derived Data and will have the right to use such Derived Data for any lawful business purpose. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Prefix in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Prefix’s system or data; and (e) otherwise violate the rights of a third party. Prefix is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Prefix Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 Customer Warranty) constitutes unauthorized and improper use of the Prefix Solution.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Prefix Solution. Customer will have the ability to export its own Customer Content out of the Prefix Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
5.4 Customer Responsibility for Operating its Own Business. Customer acknowledges that it, and not Prefix, is responsible for operating Customer’s own business, including with respect to obtaining all licenses, permits and other governmental registrations to enable its use of the Services. The Prefix Solution is not intended to be used as advice as to whether to engage in any particular transaction.
6. PROFESSIONAL SERVICES. Where the parties have agreed to Prefix’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (
“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
7. DATA SECURITY; PRIVACY.7.1 Data Security. During the Term, Prefix will maintain commercially reasonable safeguards and procedures designed to prevent the unauthorized use or disclosure of Personal Data (“
Data Safeguards”). During the Term, Prefix will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.
7.2 Privacy. Without limiting Customer’s obligations under Sections 2 (Provision of Services), and 2.1 (Intellectual Property), each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under this Agreement with respect to the Processing of Personal Data. The sale, retention, use or disclosure of Personal Data shall be governed by this Agreement and, as applicable, Prefix’s Privacy Policy, as in effect from time to time, and located at
https://www.useprefix.com/privacy.
7.3 General Terms and Conditions. The parties expressly acknowledge and agree that this Order Form, appendices attached, and any amendments hereto signed by the parties, is subject to and conditioned upon Customer’s agreement to the terms and conditions of that certain Master Services Agreement General Terms and Conditions (the “
Agreement”) appearing at:
https://www.useprefix.com/terms. By signing below, Customer expressly acknowledges and agrees that it has reviewed the Agreement and agrees to be bound by the terms and conditions contained therein. Customer further acknowledges and agrees that by signing below, the person signing this Order Form has the authority to execute this Order Form on behalf of Customer. This Order Form may not be amended or modified, except in a writing signed by both Parties.
8. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH CUSTOMER. PREFIX EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. PREFIX DOES NOT WARRANT THAT OPERATION OF THE PREFIX SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
9. LIMITATION OF LIABILITY9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO PREFIX DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL PREFIX’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10. CONFIDENTIALITY.10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the
“Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the
“Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Prefix.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Prefix). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11. INDEMNIFICATION.11.1 By Prefix. Prefix will defend at its expense any suit brought against Customer, and will pay any settlement Prefix makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Prefix Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Prefix Solution becomes, or in the opinion of Prefix is likely to become, the subject of a claim of infringement, Prefix may, at the option of Prefix: (a) procure for Customer the right to continue using the Prefix Solution; (b) replace the Prefix Solution with non-infringing software or services which do not materially impair the functionality of the Prefix Solution; (c) modify the Prefix Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Prefix Solution and Documentation. Notwithstanding the foregoing, Prefix will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Prefix Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Prefix Solution in combination with other products, equipment, software or data not supplied by Prefix; or (iii) any modification of the Prefix Solution by any person other than Prefix or its authorized agents (collectively, the
“Exclusions” and each, an
“Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Prefix, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 By Customer. Customer will defend at its expense any suit brought against Prefix, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s breach or alleged breach of Sections 5.2 (Customer Warranty) or 14.6 (Compliance with Law); or (c) claims for bodily injury or damage to physical property, to the extent (i) alleged to be caused by Customer’s or any other party’s use of the Prefix Solution; or (ii) caused by the acts or omissions of Customer, its employees, officers or agents. This section states the sole and exclusive remedy of Prefix and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
11.3 Procedure. The indemnifying party’s obligations as set forth above
are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. TERM AND TERMINATION.12.1 Term. This Agreement will begin on the Order Form Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the
“Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the Commencement Date set forth in the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with this Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
12.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality);
and (c) any amounts owed to Prefix under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 4 (Fees and Expenses; Payments), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.2 (Termination for Breach), 12.3 (Effect of Termination), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
12.4 Data Extraction. For twenty (20) days after the end of the Term, as applicable, Prefix will make Customer Content available to Customer through the Prefix Solution on a limited basis solely for purposes of Customer retrieving Customer Content, unless Prefix is instructed by Customer to delete such data before that period expires. After such period, Prefix will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession.
13. MISCELLANEOUS.13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Prefix arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Prefix, or any products utilizing such data, in violation of the United States export laws or regulations.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.6 Compliance with Law. Customer will, and will ensure that all Authorized Users, always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its and their purchase and use of the Services, Licensed Material and Documentation.
13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.8 Independent Contractors. Customer’s relationship to Prefix is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Prefix.
13.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Prefix, by emailing
jared@useprefix.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
13.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Prefix.
