These Terms form part of the Statement of Work (“SOW”) entered into by and between _________________________ and Preparis, Inc. dated as of _____________, 2018 (these Terms and the SOW, collectively, the “Agreement”). This Agreement is dated ____ ___ __ (“Effective Date”) through ___________________ (“Termination Date”) unless terminated earlier in accordance with the terms set forth herein, and is between _________________________ (“Client”, “you” or “your”), and Preparis, Inc. (“Preparis” or “Vendor” or “our”). In the event of any conflict between these Terms or the SOW, these Terms will control to the extent necessary to resolve any such conflict.
Password/Username Protection and Use
You need a password and user name to log-in to the Site and to use the Preparis Portal and Mobile Application (each as described in the SOW and collectively, the “Services”). You are responsible for maintaining the confidentiality of your password and username. You agree to (a) immediately notify Vendor of any known unauthorized use of your password or your user name or any other known breach of security in relation to the Services and (b) exit from your account at the end of each session.
You are solely responsible for all actions taken using your password (except to the extent such password was compromised by Vendor or its agents, contractors or employees). You agree not to share your password, let anyone else access your password or do anything else that might jeopardize the security of your password. Each party agrees to immediately notify the other party if your password is known to be disclosed to an unauthorized third party, if there is any known unauthorized use of your password or any other breach of security in relation to the Services. Neither party will be liable for any loss or damage arising from the other party’s failure to comply with this section.
If you have registered for an account to use the Services, you hereby warrant that the information provided by you for the purposes of such registration is complete and accurate. You shall ensure that such information is kept up to date.
Each party hereby warrants that it is a corporation or other legal entity, validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement.
Subscriptions and Payment
- This Agreement applies your purchase of a paid subscription to the Services provided by Vendor on and through the Site (a “Subscription”).
- Subscription Fees. If you purchase a Subscription, you shall pay all undisputed fees, including any fees for (i) additional services purchased by you or (ii) usage that exceeds the thresholds set forth in the SOW at the rates set forth in the SOW, as well as any applicable taxes, applicable to such Subscription from time to time within 30 (thirty) days from the date of invoice. Accounts not paid when due are subject to an interest charge calculated at 1.5 percent per month (18% APR). You are expressly agreeing that Vendor is permitted to bill you for the applicable fees as set forth in the SOW, and any applicable taxes and any other charges as described in this paragraph that you may incur in connection with your use of this Site.
- Subscription Cancellation Upon written notice, Client has the right to immediately terminate this Agreement, with no further financial obligations, if Preparis: (a) fails to cure a breach of any material term or condition of this Agreement within thirty (30) days after receiving written notice specifying such breach; or (b) becomes insolvent, ceases doing business, or files a Petition for Bankruptcy. Any fee paid will not be refunded.
- You agree to pay all taxes, fees and other charges incurred in connection with your purchases of a Subscription (“Taxes”). In no event, however, shall you be responsible for any taxes based on the income of Vendor.
- You must notify us in writing within seven (7) days after receiving your invoice if you dispute any of our charges on that invoice, or such dispute will be deemed waived. Notice of billing disputes should be sent to the following address: info@Preparis.com/archived-site.
Copyright and Proprietary Rights
We grant you a limited, irrevocable (except as expressly set forth in these Terms), nonexclusive, non-assignable, non-sub licensable, royalty free right and license to (a) Utilize (and allow your authorized users to Utilize) the Services, (b) upload, ingest, incorporate and use (and allow your authorized users to upload, ingest, incorporate and use) any proprietary code, documentation, applications, materials, information and content owned, controlled or otherwise made available by or on behalf of Vendor as required in connection with the permitted use of the Services and (c) allow your end users to access the Services, through a generally available web browser (but not any scraping, spidering, crawling or other technology or specialist software used to harvest data) and mobile application, to view information that we provide or that is provided through the Services and use and interact with the Services as contemplated under the SOW, only in accordance with this Agreement. As used herein, the term “Utilize” means to access, display, exhibit, make available, operate, receive and use.
The name Preparis, Preparis.com/archived-site, our logo and our product and service names are all trademarks, service marks, and trade names (collectively, the “Marks”) of PREPARIS, Inc. There may be other Marks on the Site which belong to their other respective owners, who have granted Vendor the right and license to use such Marks. Vendor’s failure to display the trademark symbols at every use does not invalidate their ownership status. Site users are responsible for labeling their own products, services, or other listings.
The Site and our Services and its content are protected by United States and international copyright and other laws. Unless otherwise specified in these Terms, all information and screens appearing on the Site or through our Services, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Vendor. You and your authorized users and end users may print and download portions of Vendor copyrighted material solely in connection with your use of the Site and/or the Services, and you agree not to change or delete any proprietary notices, trademarks, and the like from any materials. Any other copying, redistribution, publication, or retransmission of any portion of this material is strictly prohibited without Vendor’s express written consent. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
As between Vendor and Client, all information, documentation and materials submitted by or on behalf of Client and/or its authorized users and end users to Vendor, the Site and/or the Services, including, without limitation, information, data and records of, applicable to and/or relating to an individual (e.g., name, email address, physical address, telephone number, etc.) (such information, documentation and materials, collectively, “Client Information”) are the sole property of Client. Vendor shall not disclose Client Information to third parties and shall only use Client Information as necessary to provide the Services hereunder. Modification of the Client Information and the use, sale or distribution thereof except as expressly permitted herein is expressly prohibited.
General Use Restrictions
Modification of the Vendor materials provided on or through the Site and/or Services or unauthorized use, resale or redistribution of the Vendor materials provided on or through the Site and/or Services for any other purpose than as expressly permitted or as contemplated herein is expressly prohibited. You shall not copy, license, sell, transfer, make available, distribute, or assign your right to use the Services or the Vendor materials provided on or through the Site and /or Services to any third party.
Except for the rights expressly granted herein and except for Client materials, information and/or content , you have no right, title, or interest in or to the Site, the Services, or any Vendor materials, information and/or content provided on or through the Site and/or Services by Vendor or its licensors, including without limitation, documentation, stories, articles, text, images, and other multimedia data, and all right, title, and interest in and to the foregoing shall remain exclusively with Vendor and its licensors, as applicable. We grant you no other rights, implied or otherwise, and reserve all rights not expressly granted under these Terms.
You are responsible for providing and maintaining, at your own option and expense, all hardware, software and communication lines required to access the Site and the Services. Without limiting the generality of Vendor’s obligations set forth in this Agreement, Vendor is responsible for procuring and maintaining the connectivity of its own proprietary networks and obtaining internet connectivity, generally.
Uptime Guarantee: Site and Services will be available to and accessible by Client, its authorized users and end users in accordance with the Specifications (as defined below) with at least 99.9% (“Uptime Guarantee”) of the time in any calendar month, except for: (a) “planned downtime”, or (b) any unavailability caused by circumstances beyond Vendor’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, or acts of terror (each such matter, a “Force Majeure Event”), provided, however, that (i) Vendor shall resume performance promptly upon removal of such circumstances, (ii) if any Force Majeure Event lasts, in the aggregate, for a period of 30 days or more, Client shall have the right to immediately terminate this Agreement with no further financial obligations and (iii) a Force Majeure Event shall not include any event, matter or cause that (x) is a reasonably foreseeable consequence of the negligence or deliberate act of Vendor, (y) is attributable to the acts or omission of third party services providers or subcontractors, or (z) could have been avoided through the exercise of reasonable diligence by Vendor or any person or entity engaged by Vendor. For purposes of this Agreement, “planned downtime” shall mean Vendor’s regularly scheduled maintenance windows for the Services which (a) Client has been notified of five business days in advance, (b) shall take place no more than (i) one hour per night starting at 4 AM ET, for daily maintenance, and (ii) three hours per month between the hours of 2 AM and 6 AM ET, and (c) shall in no event exceed four hours per month in the aggregate.
If Preparis does not meet Uptime Guarantee in any 30-day rolling period, you will receive a Subscription extension(s) for the applicable annual Subscription period according to this table:
Subscription extension at no extra charge
Meeting SLA (“Service Level Agreement”), no credit
You further agree that you will not upload, post or otherwise make available through our Services or on the Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, and the burden of determining that any material is not protected by any such right is on you. Except as a result of Vendor’s breach of this Agreement or as otherwise set forth herein, you shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights resulting from your submissions.
Vendor shall indemnify and hold Client and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees) Client or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand (a) of any actual or alleged unauthorized use or disclosure of, or any breach of this Agreement related to, Client Information and (b) from a third party (i) that the Site and/or Services or Client’s use thereof in accordance with the terms of this Agreement or as otherwise contemplated hereunder violates any applicable law or regulation, or the rights of any third party, or (ii) related to Vendor’s breach of this Agreement, negligence or intentional or willful. Client shall indemnify and hold Vendor and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees) Vendor or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that Vendor’s use of Client Information solely in accordance with the terms of this Agreement violates any applicable law or regulation, or the rights of any third party.
You agree to provide Vendor with accurate and truthful personal information about you as required for the Services to function as contemplated hereunder and sufficient for us to send you correspondence and to bill you for Services, including your name, address, company name, and e-mail address. Such information shall not be false, misleading, or fraudulent. You agree not to do any of the following while using the Site:
- Intentionally or unintentionally violate any applicable law or regulation.
- Impersonate, falsely state, or otherwise misrepresent your affiliation with a person or entity; or harass defame, abuse, threaten others, or interfere with another user’s use and enjoyment of the Site and/or Services.
- Access, tamper with, or use non-public areas of this Site, Services, or Vendor’s computer systems, or interfere with or disrupt servers or networks connected to the Services or violate the regulations, policies or procedures of such networks. Unauthorized individuals attempting to access or tamper with these areas may be subject to prosecution and their rights to use this Site and Services will be terminated immediately without notice.
- Knowingly or intentionally transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots.
- Attempt to gain unauthorized access to the Site or Services, other passwords, accounts, computer systems or networks connected to the Services, through password mining or any other means.
- Resell any content accessed through the Site and/or Services or any aspect of this Site without Vendor’s prior written consent.
- Create Internet “links” to this Site or our Services or “frame” or “mirror” any material, content or information contained on, or accessible from or on any other server or Internet-based device connected to, this Site and/or the Services.
- Knowingly hinder or impair the functionality of the Site or the Services provided to other clients of Vendor.
Vendor reserves the right to terminate your access to the Site and/or Services for violation of the foregoing list of prohibitions if you fail to cure such violation within thirty (30) days after receiving written notice of same. Vendor may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Vendor’ discretion, Vendor will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Internet.
Vendor does not and cannot review all content that is submitted or posted to the Site and/or through the Services. These prohibitions do not require Vendor to monitor, police or remove any content or other information submitted by you or any other user.
Vendor represents and warrants to Client that: (a) the Services shall be provided and shall function in accordance with the terms of this Agreement and the developmental, functional and operating parameters, criteria, specifications and other requirements set forth in this Agreement (collectively, the “Specifications”), (b) it owns or has the necessary intellectual property rights needed to provide the Services and licenses hereunder, (c) it shall provide all services hereunder with reasonable skill, care, timeliness and competence, by suitably qualified and experienced personnel in a professional and workmanlike manner, (d) the Services and any other materials and services provided by or on behalf of Vendor (and Client’s and Utilization thereof) do not and shall not violate any applicable law, rule or regulation or infringe, misappropriate or violate the intellectual, proprietary, privacy or other rights of any person or entity, (e) any software, programming code or other technology provided or used by Vendor in providing the Services shall not contain and shall be entirely free of viruses, and (f) Vendor shall take all reasonable technical and organizational measures against the unauthorized or unlawful access to and processing of, and the loss, corruption or destruction of and damage to, Client Information.
Except as expressly provided in this Agreement, to the fullest extent possible pursuant to the applicable law, Preparis, for itself and its licensors, disclaims all warranties, expressed, implied, statutory or otherwise, including, but not limited to , implied warranties of merchantability and fitness for a particular purpose.
Waiver of Consequential Damages
Except for the indemnification obligations set forth in this Agreement, under no circumstances shall Vendor or Client be liable for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages, including, but not limited to, loss of data, profits, revenue, use or other economic advantage, arising out of the use, or the inability to use, the site, services, materials or any information contained or presented on this site, including, without limitation, submissions, whether under a theory of contract, tort (including negligence), product liability or otherwise, even if Vendor or Client has been advised of the possibility of such damages.
Copyright and Trademark Infringements
Vendor respects the intellectual property of others, and we ask you to do the same. Vendor may, in appropriate circumstances and at our discretion, terminate your and/or your authorized users’ ability to use our Services and/or access our Site if you or your authorized users infringe the intellectual property rights of others and you fail to cure such infringement within thirty (30) days after receiving written notice of same. If you believe that your work is the subject of copyright infringement and/or a trademark infringement and appears on our Site, please provide Vendor’s copyright agent the following information:
- 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 at a single online site are covered by a single notification, 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 Vendor to locate the material.
- Information reasonably sufficient to permit Vendor 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, its agent, or the law.
- 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.
You acknowledge that if you fail to comply with substantially all of the above requirements of this Section your notice may not be valid and Vendor may not be able to remove infringing content. Vendor’s agent for notice of claims of copyright or trademark infringement on the Site can be reached as follows:
Charles Pearson, Preparis, Inc., 5901-A Peachtree Dunwoody Rd, Suite 350, Atlanta, GA 30328
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
If you elect to send us a counter notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- A physical or electronic signature of the user.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The user’s name, address, and telephone number, and a statement that the user consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the user’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the user will accept service of process from the person who provided notification or an agent of such person.
Such written notice should be sent to our designated agent as follows:
Charles Pearson, Preparis, Inc., 5901-A Peachtree Dunwoody Rd, Suite 350, Atlanta, GA 30328
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Only the intellectual property rights owner may report potentially infringing items through Vendor’s reporting system set forth above. If you are not the intellectual property rights owner, you should contact the intellectual property rights owner and they can choose whether to use the procedures set forth in these Terms.
Governing Law and Binding Arbitration
These Terms will be governed by and construed in accordance with the laws of the State of Delaware, without regard to the choice or conflicts of law provisions of any jurisdiction. The parties agree to bring any and all disputes relating to this Agreement in a federal or state court located in the state of Delaware and hereby irrevocably submit to the exclusive jurisdiction of such courts.
If mutually agreed between the Vendor and Client, any disputes between the parties relating in any way, directly or indirectly, to breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort may be arbitrated according to the rules of the American Arbitration Association (AAA) in Delaware, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on each party. Each party acknowledges and agrees that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitration claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties. Notwithstanding the foregoing, the parties agree that each party shall have the right to seek a temporary or permanent injunction (or other equitable relief), and file the necessary underlying lawsuit, in any court having jurisdiction over the parties as necessary to protect its intellectual property rights or confidential information.
If you violate a material term of this Agreement and fail to cure such violation within thirty (30) days after receiving written notice specifying such violation, Vendor may terminate and/or suspend your access to the Site upon written notice. The terms of this Agreement that are designed to survive termination shall survive any termination. The terms of this Agreement set forth the entire agreement between you and Vendor about the Site and Services and supersedes all previous or contemporaneous agreements, representations, understandings, or terms, written or oral. No joint venture, partnership, employment, or agency relationship exists between you and Vendor as a result of this Agreement or use of the Services. If any provisions of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, all remaining provisions shall continue in full force and effect, and such provision shall be construed, as nearly as possible, to reflect the intentions of the intentions of the parties. No amendment, modification, waiver or discharge of any provision of this Agreement shall be valid unless made in writing and signed by the party against whom enforcement is sought. The failure of Vendor or Client to enforce any right or provision herein or to act with respect to a breach by Vendor or Client, does not constitute a waiver of such right, or provision, or right to act with respect to subsequent or similar breaches. The proprietary rights, disclaimer of warranties, representations made by Vendor or Client, indemnities, limitations of liability and general provisions shall survive any termination of this Agreement. Vendor may not assign, transfer, convey or subcontract this Agreement, or any rights or obligations hereunder, to any other party without Client’s prior written consent; provided, however, that Vendor may assign or transfer this Agreement in its entirety to an entity into which or with which it is merged or consolidated, or which acquires all or substantially all of its assets, provided that Vendor shall give Client reasonable prior written notice thereof and provided that the acquiring party/assignee accepts in writing all of Vendor’s obligations hereunder. Vendor shall not use Client’s name, service or trademarks or logos or otherwise identify or refer to Client in any press releases, publicity, marketing, online platforms or promotional material, unless approved in advance by Client in writing, in each instance. All notices and other communications required or permitted under this Agreement shall be in writing and delivered personally, sent via email (with confirmation of receipt), or via an overnight courier, to the applicable party at the following respective addresses:
5901-A Peachtree Dunwoody Road Suite 350
Atlanta, GA 30328
Attention: Wade Tucker
Each party acknowledges that it has read this Agreement and agrees that this Agreement is the complete and exclusive statement of the parties with respect to the Site and the Services and supersedes and merges all prior proposals understandings and agreements, oral or written, between the Parties relating to the subject matter hereof.