Preparis Product Terms (December 2023)

THESE TERMS TOGETHER WITH YOUR EXECUTED DOCUMENTATION INCORPORATING THESE TERMS BY REFERENCE (COLLECTIVELY THE “AGREEMENT”) GOVERNS YOUR USE OF PREPARIS PRODUCTS, AND/OR SERVICES (COLLECTIVELY THE “SERVICES”). BY ACCEPTING THIS AGREEMENT AND/OR BY USING THE SERVICES YOU AGREE TO THE TERMS OF THE AGREEMENT. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1. SERVICE FEES AND PAYMENTS
In addition to fees described in the Agreement, the Customer shall reimburse Preparis for any applicable taxes (excluding taxes on income), customs, duties and government impositions and charges incurred in connection with the Agreement. Upon each anniversary date during the term of the Agreement, Preparis may increase the fees payable by Customer for the Services. Any such increase will be communicated via Customer’s standard invoice for Services. Should Customer fail to pay any invoice by its due date, Customer will be responsible for paying Preparis a late payment fee equal to the lesser of (a) 1.5% of the amount of such unpaid fees per month or (b) an amount that, if paid, would not cause the fees paid by Customer under this Agreement to exceed the maximum rate allowed by law. Fees are nonrefundable whether or not Customer users actively access the Services. All invoices shall be sent to Customer electronically to the email address provided by Customer.

 

2. TERM
After the initial term of the Agreement, the Agreement shall automatically renew for like periods unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. The term of any recurring Services added to your Account after the initial order document is executed will start on the Start Date in the applicable Order Form, will run conterminously with the then-current Term of any preexisting Services unless otherwise extended in the applicable Order Form, and will be invoiced on the same billing cycles as the preexisting Services.

3. SERVICES

3.1          Preparis grants Customer a non-exclusive, non-transferable, world-wide right to access and use the Services along with any audio or visual information, data, documents contained or made available to Customer within the Services (“Content”) for the term of this Agreement solely for Customer’s own internal business purposes and subject to the terms and conditions of this Agreement.

3.2          Customer shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make the Services or Content available to any third party, (ii) modify or make derivative works based upon the Services or Content, or use the Services for commercial time-sharing, rental, or service bureau use, (iii) commercially exploit the Services or Content in any way, or (iv) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Services.

3.3          Customer acknowledges and agrees that:  (i) as between Customer and Preparis, Preparis owns all rights, titles, and interests, including all related intellectual property rights, in and to the Services and Content and Customer acknowledges and agrees that it does not acquire any rights, express or implied, therein, except as specifically set forth in this Agreement; and (ii) any configuration or deployment of the Services shall not affect or diminish Preparis’ rights, titles, and interests in and to the Services. This Agreement is not a sale and does not convey any rights of ownership in or related to the Services or Content by Preparis to Customer.

3.4          Preparis shall not use the data, information or material provided or submitted by Customer during Customer’s use of the Services (“Customer Data”) for any purpose other than to provide the Services to Customer and as necessary to monitor and improve the Services. As between Customer and Preparis, all data submitted by Customer to the Services shall remain the sole property of Customer. Preparis will not: (a) disclose Customer Data except as compelled by law or as expressly permitted in writing, or (b) access Customer Data except to provide the Services as described herein or prevent or address service or technical problems, or at Customer request in connection with support matters. Customer shall have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, and copyright of all Customer Data. Preparis may use, reproduce and disclose Customer Data that is anonymized, de-identified, or is otherwise not reasonably associated or linked to Customer (or any other identifiable individual person or entity) (“Anonymized Data”) for improvement of the Services. This right to use Anonymized Data will survive termination of this Agreement.

3.5          Upon termination of the Agreement, Preparis will retain Customer’s Data for thirty (30) calendar days, unless Customer requests earlier deletion, and provide Customer with an opportunity to securely download a copy of Customer Data in its original format upon written request to Preparis. Within thirty (30) business days from Agreement termination Preparis will facilitate secure deletion of Customer’s Data from disk volumes. Certification of the secure deletion of Customer Data will be provided upon Customer request.

 

4. REPRESENTATIONS, DISCLAIMER OF WARRANTY

Preparis represents and warrants that (i) the Services will perform substantially in accordance with the specifications set forth in the standard documentation and (ii) that the Services and Content as provided by Preparis under this Agreement do not infringe, misappropriate or otherwise violate the intellectual property rights of a third party. PREPARIS DOES NOT REPRESENT OR WARRANT THAT THE PREPARIS SERVICE WILL MEET ANY CUSTOMER REQUIREMENTS OR EXPECTATIONS AND THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICES, CONTENT, AND ASSOCIATED DOCUMENTATION IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE, PREPARIS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

5. LIMITATION OF DAMAGES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Preparis shall not be responsible to Customer, to any recipient of a communication from the Services, or to any other person for any charges or claims that arise from Customer’s or an individual person’s receipt of or response to a notification message in the course of Customer’s use of the services. Except for Customer’s non-payment of fees due under this Agreement, the aggregate and cumulative liability of either party’s aggregate liability shall in no event exceed the amounts actually paid by Customer in the one (1) year period immediately preceding the event giving rise to such claim.

 

6. CONFIDENTIALITY
All non-public information that is designated as confidential or which a reasonable person should understand as being confidential shall be regarded as confidential information hereunder (“Confidential Information”). Each of the parties (the “Receiving Party”) shall not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose other than to perform its obligations hereunder. The Receiving Party shall not disclose any of the Disclosing Party’s Confidential Information to any third party other than its employees, agents and representatives who have a need to know such information in order to perform the Receiving Party obligations hereunder. Information, however, shall not be considered Confidential Information hereunder if it (i) is or becomes a part of the public domain through no breach of this Agreement by the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure; (iii) is lawfully disclosed to the Receiving Party by a third-party that had the right to make such disclosure without restriction on disclosure; or (iv) is independently developed by the Receiving Party without the use of any of the Disclosing Party’s Confidential Information. The Receiving Party shall not be in violation of this Section for disclosure of the other party’s Confidential Information that is required to be disclosed pursuant to law or governmental or judicial process (collectively, “Legal Process”), provided that (i) notice is promptly provided (if lawful) to the Disclosing Party in order that it may have every opportunity to intercede in such process to contest such disclosure and/or seek a protective order; (ii) discloses only as much Confidential Information as is necessary to comply with the Legal Process; and (iii) identifies the information disclosed as being Confidential Information of the Disclosing Party. Any Legal Process disclosure shall not make the disclosed information non-confidential. Upon termination or expiration of this Agreement for any reason, all Confidential Information of the other party (including analyses, copies and extracts thereof) shall, at the Disclosing Party’s written request, be promptly returned or destroyed.

 

7. TERMINATION
Either party may terminate this Agreement if the other party is in Default.  “Default” shall mean when the party: (i) materially breaches this Agreement and fails to cure such breach within 30 days of receiving written notice of the breach, or (ii) enters any arrangement with its creditors or becomes subject to external administration or ceases to be able to pay its debts as and when they become due or ceases to carry on business. If Customer is in Default of this Agreement, Preparis may suspend performance of any or all Services contracted for under this Agreement or pursue any additional or alternative remedies available at law or in equity without waiver of or prejudice to the other rights described in this section.

 

8. FORCE MAJEURE
“Force Majeure Event” means an event that is beyond the reasonable control of Preparis (including, but not limited to, acts of God, acts of terrorism, strikes, lock-outs, wars and war operations, failures that result from equipment owned or operated by third parties not affiliated with Preparis, restraints of government,  lack or unavailability of the Internet or any communication systems, or severe inclement weather) which Preparis believes will delay or prevent it from performing any obligation under this Agreement. Preparis shall provide the Customer with reasonable notice of any Force Majeure Event, and to the extent and for the period that Preparis is delayed or prevented from performing any obligation under this Agreement because of a Force Majeure Event such performance shall be excused. Preparis shall not be liable to the Customer or be deemed to have breached this Agreement for any failure or delay in the performance of all or any portion of its obligations under this Agreement if such failure or delay is due to any Force Majeure Event. Preparis will use commercially reasonable efforts to restore and provide contracted Services under this Agreement as soon as reasonably feasible after a Force Majeure Event.

 

9. GENERAL TERMS
9.1          Each party will make a good faith effort to resolve any disputes relating to this Agreement prior to commencing legal action. These efforts may include an offer to arrange for executive-level discussions or an offer to submit the dispute to non-binding mediation. This Agreement shall be governed in all respects by the laws of the State of Delaware. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The seat or place of arbitration shall be Denver, Colorado. The award rendered by the arbitrator shall be final, non-reviewable and non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration, or in default thereof appointed by the AAA in accordance with the Commercial Rules. No action, regardless of form, arising out of transactions under this Agreement may be brought by either party more than one (1) year after the cause of action has occurred.  This limitation shall not apply to collection of any accrued amounts owed by Customer to Preparis.

9.2          Except as expressly permitted in this Agreement, neither party hereto shall use any of the other party’s trademarks, trade names or service marks in any manner, without the prior written consent of the other party. Notwithstanding the foregoing, Customer acknowledges that Preparis may use Customer’s name in written and spoken communication with prospective customers of the Services and general customer lists.

9.3          This Agreement may not be assigned by either party without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent in connection with the sale of all or substantially all its business, provided such party provides the other party with prompt written notice of such sale and assignment. No assignment shall relieve Customer of its obligations with respect to payments that become due prior to the assignment. This Agreement shall be binding upon the parties’ respective successors and assigns.

9.4.         All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed email, (ii) on the date it was delivered by overnight courier, or (iii) if available, by certified mail return receipt requested, on the date received, to the addresses set forth in in an order form hereto and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.

9.5          In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

9.6          The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

9.7          The Services are also subject to the standard “Preparis Terms of Use” found at i) https://www.Preparis.com/terms-use/ or any successor URL thereto, or ii) notified within the Services (the “Terms”). The Terms, including all disclaimers, supplement and are incorporated by reference into the Agreement.

9.8          The Agreement and any applicable additional terms which may be incorporated by reference constitutes the entire and integrated agreement, including any addenda that may be made to these terms, between Preparis and Customer with respect to the subject matter herein. The Agreement may not be modified except by a written document signed by representatives of both parties. All terms and conditions set forth in any Customer-supplied document which are not agreed to by Preparis in writing and conflict with or add to the terms of the Agreement shall not be binding on Preparis and are hereby rejected.

 

Additional Terms and Conditions for Advisory Services and Consulting:

1. WORKING PRACTICE

Customer will designate a representative to be the project sponsor for the Services. This representative will be the focal point for all communications relative to the Services and will have the authority to act on Customer’s behalf in matters regarding the Services. Customer will provide adequate working space at Customer’s site for Preparis to work if on site. Customer’s employees will be made reasonably available to Preparis for planned meetings, to answer questions, and to provide information concerning the project (existing plans, processes, procedures, recovery strategy, etc.) in a timely fashion. Customer will ensure participation of key personnel in meetings.

 

2. PROJECT ASSUMPTIONS

All work will be performed during normal business hours, Monday through Friday, except applicable holidays. Preparis shall not have responsibility for any product that is not provided by nor any task that is not performed by Preparis during the engagement. Failure of Customer to provide accurate information regarding processes, recovery tasks, or business requirements may add time and cost to the project. Preparis is not responsible for delays, errors, or omissions caused or incurred by other parties.

 

3. INDEPENDENT CONTRACTOR

The relationship created under this Agreement between Preparis and Customer is that of independent contractors and nothing contained in this contract or the performance of any of the services hereunder shall be construed as creating an employee or partnership relationship. Neither Preparis nor any of its employees, agents, subcontractors, or anyone working for or on behalf of Preparis are employees of Customer and are not entitled to the provision by Customer of any employee benefits. Customer shall not be responsible for payment of, and Preparis shall not make a claim against Customer for worker’s compensation, disability benefits, or unemployment insurance. Preparis shall, at its own expense, comply with all applicable federal, state, and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors.

 

TERMS UPDATED DECEMBER 1, 2023