Terms & Conditions
Pryze App Inc. (referred to as “Pryze”, “us”, or “we”) provides the www.pryzeapp.com and https://engaged-5ba2a.firebaseapp.com/ (referred to as this “Site”) subject to your compliance with all the terms, conditions, and notices contained or referenced herein (this “Agreement”), as well as any other written agreement between us (or your company).
BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THIS SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE EXIT THE SITE NOW. YOUR REMEDY FOR DISSATISFACTION WITH THIS SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THIS SITE, IS TO STOP USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. THIS AGREEMENT BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS SITE.
When using particular services or materials on this Site, Users (as defined below) shall be subject to any posted guidelines or rules applicable to such services or materials that may contain terms and conditions in addition to those in this Agreement. All such guidelines or rules are hereby incorporated by reference herein.
This Agreement is effective as of June 30, 2020. We reserve the right to change this Agreement from time to time without notice to you. You acknowledge and agree that it is your responsibility to review this Site and this Agreement periodically and to be aware of any modifications. Your continued use of this Site, including Software and Services, after such modifications will constitute your acknowledgement of the modified Agreement and your agreement to abide and be bound thereto.
As used in this Agreement, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, members, managers, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering this Site and/or its contents.
“Access” means viewing or otherwise obtaining or requesting information using the Site.
“Agreement” means these terms and conditions, together with any and all other documents, agreements, or understandings referencing these terms and conditions.
“Content” means any information, data, materials, templates, examples, forms, text, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by Users.
“Content Providers” means third parties who post information or other content on the site.
“Customer” means the customer entity that has completed a Registration (as defined herein).
“Customer Data” means all electronic data or information submitted by Customer or its affiliates to and stored by the Software, Services, or Site.
“Device” means any single, authorized mobile device or stationary device for use with the Software, Services, or Site.
“Fees” means all amounts, charges, costs, or fees charged by Pryze to Customer for the Services and/or access to the Software or Site.
“Initial Term” means the initial subscription term specified in the Registration, excluding any renewals terms.
“Intellectual Property Rights” means all copyrights, trademarks, service marks, patents or other proprietary rights and laws relating to the protection of intellectual property.
“Mobile Applications” means any mobile device software provided by us to you through the Apple App Store or Google Play, including our mobile application.
“Site” means the access controlled, server-based site made available to Customer and Customer’s Users of the Software and Services located on the Internet at www.pryzeapp.com or https://engaged-5ba2a.firebaseapp.com/
“Software” means access to and use of certain cloud-based software-as-a-service offering(s) for work and home services utilizing Pryze’s software application (“Software”).
“Term” means the Initial Term specified in the applicable Registration and any renewal terms.
“Third Party Applications” means online, Web-based applications or services, and offline software products that are provided by third parties and may operate in conjunction with the Services.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Services have been purchased from Pryze, and who have been supplied user identifications and passwords by Customer. Users are those who access the Site, whether to post of access content and includes, without limitation, Content Providers.
“User Content” means Customer’s name, contact information, business information, and other personal information.
2. General Terms of Access to the Services.
(a) License. Subject to the terms of this Agreement and payment of the applicable Fees, Pryze grants to Customer during the Term a personal, limited, non-exclusive, non-transferable license, in object code format only, to permit Users to use the Software, Services, or Site in accordance with the use parameters, pricing, and payment terms described in this Agreement and the Registration, solely for Customer’s own purposes, and in accordance with the terms and conditions of this Agreement. The provision of the Services and license hereunder is not contingent upon the delivery of any future features or functionality of the Software, Services, or Site, nor dependent on any verbal or written promises made by Pryze regarding future features, use or functionality of the Software, Services, or Site.
(b) Registration. In order to access some of the services on this Site, Customers and Users will require a separate account and password that can be obtained by completing our online registration form (“Registration”), which requests certain information and data (“Registration Data”) and maintaining and updating your Registration Data as required. Customer shall provide Pryze with accurate, current, and complete information on Customer’s legal name, address, email address, and phone number, and throughout the Term maintain and promptly update this information if it should change. We may use a Third Party Application, such as Facebook, to establish your Registration and Registration Data. By registering, you agree to comply with all of the terms and conditions imposed by the Third Party Application, you represent that all information provided in the Registration Data is true, complete, and accurate, and you agree to maintain and update this information as required in order to keep it current, complete and accurate.
You acknowledge and agree that we may send you important information and notices regarding services by email or through other means. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including but not limited to, your failure to receive critical information about the services. You acknowledge, consent, and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims of a violation of the rights of third-parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of Pryze, the Site, its Users, and the public.
(c) Customer Must Have Internet Access. DSL, cable, or another high-speed Internet connection is required for proper transmission of the Services. Customer is responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect the Customer network to the Services, including, but not limited to, “browser” software that supports protocols utilized by the Software, Services, or Site. Pryze assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Pryze.
(d) Users, Passwords, Access, and Notification. Customer shall authorize access to and assign unique passwords and usernames for the Users associated with the Customer’s Registration. User logins are for designated Users and cannot be shared or used by more than one User. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software, Services, or Site and shall promptly notify Pryze of any unauthorized access or use and any loss or theft or unauthorized use of any User’s usernames or passwords by emailing Pryze at firstname.lastname@example.org. You are solely responsible for maintaining the confidentiality of your password, user ID, and account and for any and all statements made and acts or omissions that occur through the use of your password and account, including any mail sent and any charges incurred. Therefore, you must take steps to ensure that others do not gain access to your password and account. You may not transfer, sell, or share your account with anyone, and we reserve the right to immediately terminate your account in the event of any unauthorized transfer or sharing thereof. We have the right but not the obligation to assume, without further inquiry, that any communication we receive through your account has been made by you.
(e) Use of the Services.
(i) Customer is responsible for all activities conducted by its Users and for its Users’ compliance with this Agreement, including the content of all Customer Data.
(ii) Customer agrees to provide all equipment and software necessary to connect to Pryze, including, but not limited to Mozilla Firefox 30.0 or higher, Chrome 30.0 or higher, or Safari.
(iii) You understand and agree that the services available on this Site are provided “AS IS” and that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
(iv) As between you and Pryze, title to and ownership of the Software, Services, or Site remains with Pryze and/or its licensors and is protected by intellectual property laws and regulations You acknowledge that the Software, Services, or Site and its structure, organization, and source code constitute valuable intellectual property and trade secrets. Further, Customer shall be solely responsible for the following obligations:
(A) Customer and its Users shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Software, Services, or Site, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
(B) Customer shall not transmit or store infringing material in the Software, Services, or Site.
(C) Except as permitted by this Agreement, no part of the Software, Services or Site may be rented, leased, distributed, copied, reproduced, distributed, republished, displayed, posted, or transmitted in any form or by any means. Customer and Users shall not “frame” or “mirror” the Software, Services or Site or create Internet links to the Software, Services, or Site that include log-in information, usernames, passwords, and/or secure cookies.
(D) Customer shall not sublicense, distribute, lease, rent, resell, supply, or otherwise transfer the Software, Services, or Site for use in or for the benefit of any other organization, entity, business, enterprise or third party without Pryze’s advance written consent, or enable or permit any use of the Software, Services, or Site by any third party by whatever means including through any timesharing or service bureau arrangement. Customer shall not share any license codes, usernames, or passwords with any third parties.
(E) Customer’s use of the Software, Services, or Site is subject to all applicable laws and regulations, and Customer is solely responsible for the contents of its communications through the Software, Services, or Site. By posting information in or otherwise using any communications service or interactive service that may be available on or through the Software, Services, or Site, Customer agrees that it shall not upload, share, post, or otherwise distribute or facilitate distribution of any content (“Prohibited Content”) — including text, communications, software, images, sounds, data, or other information — that:
(1) unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies—Pryze maintains the exclusive right to determine what qualifies;
(2) victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability—Pryze maintains the exclusive right to determine what qualifies;
(3) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
(4) constitute unauthorized or unsolicited advertising, or junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
(5) contains software viruses or any other computer code, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
(6) impersonates any person or entity, including any of our employees or representatives;
(7) is protected by protected by the Health Insurance Portability Accountability Act (“HIPAA”);
(8) means to harvest information about other Users;
(9) modifies the information, including headers, found on the Site;
(10) transmits, installs, uploads, or otherwise transfers to the Site any unauthorized advertisement or communication;
(11) engages in any action which Pryze determines is detrimental to the use and enjoyment of the Site;
(12) uses the Site for any unlawful or defamatory means; or
(13) transmits, installs, uploads, posts, or otherwise transfers any information in violation of the laws of the United States or posts any information that would result in civil unrest.
(F) Customer shall not use its account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the Software, Services, or Site may be available to Customer or other Users. Customer shall not interfere with anyone else’s use of the Software, Services, or Site. Users who violate systems or network security may incur criminal or civil liability.
(G) Customer shall not merge the Software, Services, or Site into any other products, services, software or hardware. Customer shall not remove the Software from any Product or use the Software, Services, or Site in connection with any product, software, or service other than the products, software, or services expressly designated by Pryze.
(H) Customer shall not take any actions that could or would reverse engineer, reproduce, modify, adapt, alter, translate, decompile, disassemble, duplicate, or create derivative works of the Software, Services, or Site, or any other Pryze technology. Customer and Users shall not attempt to derive any of the of Software’s source code.
(I) Customer shall not use its access granted hereunder to the Software, Services, or Site to (i) build a competitive product or service; (ii) make or have made a product or service using similar ideas, features, functions, or concepts as the Software, Services, or Site; or (iii) make derivative works based upon the Software, Services, or Site; or (iv) copy any ideas, features, functions, or concepts as the Software, Services, or Site.
(J) Except as expressly permitted by Pryze, you acknowledge and agree that that you will not upload, share, post, or otherwise distribute or facilitate distribution of any Content, whether created by you or acquired from another person, company, or any other website, application, or internet source.
(f) Pryze’s Rights and Obligations.
(i) Customer and Users understand and agree that temporary interruptions of the Software, Services or Site may occur as normal events, and further understand and agree that Pryze may have no control over third party networks Customers or Users may access in the course of the use of the Software, Services, or Site, and therefore, delays and disruption of other network transmissions are completely beyond Pryze’s control.
(ii) Customer and Users understand and agree that Pryze assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Customer or User Content, communications, or personalization settings. Pryze neither endorses nor assumes any liability for the contents of any material uploaded or submitted by Users. We generally do not pre-screen, monitor, or edit the Content Users post or provide to Pryze.
(iii) Pryze reserves the sole right to either modify or discontinue the Software, Services or Site, including any features therein, at any time with or without notice to Customers or Users. Pryze shall not be liable to Customers, Users or any third party should it exercise such right. Subject to the other terms of this Agreement, modifications may include, but are not limited to, changes in the pricing structure, the addition of fee-based services, or changes to limitations on allowable file sizes. Any new features that augment or enhance the then-current Software, Services, or Site will also be subject to this Agreement. Any updates or new features added to or augmenting the Software, Services, or Site are also subject to this Agreement. To keep the Software, Services, or Site up-to-date, you agree that we may automatically provide you with such updates without your further consent or notice to you.
(iv) You agree that we may at any time, and at our sole discretion, terminate your access to the Software, Services, or Site without prior notice to you for violating any terms or conditions of this Agreement or any other acceptable use standards we implement. In addition, you acknowledge that we reserve the right to cooperate fully with investigations of violations of systems or network security owned or controlled by any Third Party Applications, including by cooperating with law enforcement authorities in investigating suspected criminal violations.
(v) We, and our agents, have the right in our sole discretion to remove any Content, Customer Data, or communications that, in our sole discretion or judgment, do not comply with this Agreement, any other acceptable use standards we implement, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such Content, Customer Data, or communications. You hereby consent to such removal and waive any claim against us arising out of such removal of Content, Customer Data, or communications.
(vi) You acknowledge that we may establish general practices and limits concerning use of the Software, Services, or Site, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access any part of the Software, Services, or Site in a given period of time. You acknowledge that we reserve the right to log off accounts which have not paid a subscription fee, if applicable, or that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
(g) Security. Pryze shall maintain commercially reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Customer Data. Pryze uses Microsoft Azure native cloud services providing high availability and their automatic backup systems to protect all data contained in the Software Platform or Services. If the Software Platform or Services are impacted by any failure or incident involving data loss, Pryze shall take all commercially reasonable actions to restore the data. NOTWITHSTANDING THE FOREGOING, Pryze MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING RECOVERY FROM DATA LOSS. Customer and Users acknowledge and agree that they are solely responsible for conducting regular backup of the information and data exchanged through the Software Platform or Services. The Software Platform or Services are not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although Pryze takes reasonable precautions to preserve and protect the material Customer uploads to the Software Platform or Services, Customer should not rely on Pryze as Customer’s storage facility. Customers and Users should preserve backup copies of any digital data, information or other materials that Customer has uploaded or downloaded from the Software Platform or Services. Customer agrees not to hold Pryze responsible for any damage to, any deletion of or any failure to store Customer’s files, data or information exchanged through the Software Platform or Services.
(h) Suspension for Ongoing Harm. If Customer or Users breach this Section 2, or any other term of this Agreement, Customer agrees that Pryze may (i) terminate this Agreement pursuant to Section 8; or (ii) with timely telephonic or electronic notice to Customer, suspend access to the Software, Services, or Site if Pryze reasonably concludes that the Software, Services, or Site (A) are being used to engage in denial of service attacks or illegal activity; or (B) are causing immediate, material, and/or ongoing harm to Pryze or others. If Pryze suspends Customer’s access to the Software, Services, or Site, Pryze shall use commercially reasonable efforts to limit the suspension to the offending portion of the Software, Services, or Site and resolve the issues causing such suspension. Customer further agrees that Pryze shall not be liable to Customer nor to any third party for any suspension of the Software, Services, or Site under such circumstances as described in this Section. Customer and Users acknowledge that Pryze will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
(i) Updates. You agree that Software, Services, or Site may automatically apply updates, upgrades and additional features that Pryze deems reasonable or beneficial to you and/or reasonably necessary. You acknowledge and agree that any obligation Pryze may have to support the previous version(s) may be ended upon the availability of the update, upgrade and/or implementation of additional features. This license shall apply to any updates, upgrades and/or additional features that are not distributed with a separate license or other agreement.
(a) Confidential Information. The Customer and Pryze, as the case may be, (the “Receiving Party”) shall hold in trust for the other party hereto (the “Disclosing Party”), shall not disclose to any person, firm or entity other than the Receiving Party’s employees and agents who have a need to know such information in order to perform the Services, and shall not use in any way detrimental to the Disclosing Party, any confidential or proprietary information of the Disclosing Party (“Confidential Information”). For purposes of this Agreement, “Confidential Information” will include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Services, and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the Receiving Party; (iv) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (vi) is aggregate data regarding use of Pryze’s products and services that does not contain any personally identifiable or Customer-specific information.
(b) Non-Disclosure Obligations. Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (iv) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
4. Intellectual Property.
(b) Responsibility for Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and content permissions for all Customer Data. All Customer Data available through the Software, Services, or Site by Customer and Users has been created, designed, or provided solely by Customer or third parties without the participation or involvement of Pryze. Pryze assumes no responsibility and makes no representations, warranties, or guarantees as to the Customer Data or any other content available on the Software, Services, or Site as to accuracy, relevance, propriety, legality, or usefulness to the Customer, Users or any third parties.
(c) License to Customer Data. Subject to the terms and conditions of this Agreement, Customer and Users grant to Pryze a nonexclusive, paid-up or royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license right to copy, distribute, display, perform, publish, translate, adapt, modify, sublicense, and otherwise use certain Customer Data including templates, samples, or information regarding or relating to the Software, Services, or Site provided that such materials do not include Customer’s Confidential Information. In addition, Pryze shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into Software, Services, or Site any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the operation of the Software, Services, or Site.
(d) Pryze Intellectual Property. Customer agrees that all rights, title, and interest in and to all intellectual property in Software, Services, or Site and documentation (including all updates, enhancements, and derivative works thereof and thereto) are owned exclusively by Pryze or its licensors. Customer agrees that all content on the Site, including the logo, articles, other text, and graphics (“Pryze Marks”) are the intellectual property of Pryze and are protected under trademark, trade dress, patent, copyright, and other laws. Customer agrees that he or it may not reverse engineer, decompile, or disassemble any software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to Customer does not convey any rights in the Software, Services, or Site, express or implied, or ownership in the Software, Services, or Site or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by Pryze. Customer agrees not to display or use the Pryze Marks in any manner without Pryze’s express prior written permission. The trademarks, logos, and service marks of Third-Party Application providers (“Marks”) are the property of such third parties. Customer shall not use these Marks without the prior written consent of such third party who may own the Marks.
Users or Content Providers posting their own content (the “Material”) on the Site pursuant to the terms of this Agreement retain the copyright in such Material, but they are deemed to have given Pryze a license to the Material sufficient for the purposes of operating the Site, which means Pryze can copy the Material for backup and archival purposes, display it on the Site, use the Material in advertising and/or lead generation for the Site, allow viewers to view (including by downloading a copy to the viewer’s machines) and edit the Material for length or in compliance of the rules applicable to User postings on the Site. This license is perpetual, worldwide, transferable as part of any transfer of the Site in whole or in part, and fully-paid up. Pryze also has the right to remove User or Content Provider content from the Site at any time for any purpose.
By accepting this Agreement, you acknowledge and agree that all Content presented to you on the Software, Services, or Site are protected by Intellectual Property Rights and is the sole property of Pryze. You are only permitted to use the Content as expressly authorized by Pryze. Except as otherwise permitted expressly herein, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this Site in any form or by any means without prior written permission from Pryze, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on the Software, Services, or Site. Except as expressly set forth herein, you disclaim all rights to or ownership of any information and data generated by a product or service obtained from or through Software, Services, or Site.
Any unauthorized use of the materials appearing on the Software, Services, or Site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. Pryze does not warrant or represent that your use of materials displayed on, or obtained through the Software, Services, or Site will not infringe the rights of third parties. In compliance with the Digital Millennium Copyright Act, Users and other persons can report an infringement of intellectual property rights to email@example.com.
5. Charges and Payment of Fees.
(a) Fees and Charges. If you subscribe or purchase Software or Services that require payment of a Fee, you shall pay all associated Fees. Pryze reserves the right to modify its Fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail. If Customer elects to add additional products, services, features, functionalities, or service levels, Pryze may increase the Fees or amounts due from Customer, subject to the agreement of both parties, which may be obtained by email. All pricing terms are confidential, and Customer shall not disclose them to any third party.
(b) Billing. Pryze charges and collects in advance for use of Software, Services, or Site, which are provided on an monthly or annual basis. Pryze will automatically renew and bill your credit or debit card or EFT account or issue an invoice to you on a monthly/yearly basis, unless otherwise specified by Pryze. Recurring charges are billed in advance. You agree to provide us with accurate and complete billing information, including valid credit card information, your name, address and telephone number, and to provide us with any changes in such information within three (3) days of the change. If, for any reason, your credit card company refuses to pay the amount billed for the Service, you agree that we may, at our option, suspend or terminate your subscription to the Software, Services, or Site and require you to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts. You agree that until your subscription to the Software, Services, or Site are terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the Software, Services, or Site.
(c) Taxes. The Fees payable by Customer hereunder are net amounts to be received by Pryze, exclusive of all sales, use, withholding, excise, value added, and ad valorem taxes incurred by Customer or imposed on Pryze (other than taxes based on Pryze’s income) in the performance of this Agreement or otherwise due because this Agreement. Customer shall pay any and all such taxes and duties, customs fees and similar charges, whether directly to the appropriate taxing authority or by reimbursing Pryze for payments it made on Customer’s behalf. If Pryze has a legal obligation to pay or collect taxes for which you are responsible, Pryze shall invoice Customer for such amounts and Customer shall pay Pryze for the taxes unless Customer provides Pryze with a valid tax exemption certificate issued by the appropriate taxing authority.
(d) Failure to Pay; Suspension. Pryze reserves the right to either terminate this Agreement and/or suspend Customer’s and any Users’ access to and/or use of Software, Services, or Site for any accounts for which any payment is due but unpaid but only after Pryze has provided Customer at least two (2) delinquency notices and at least thirty (30) days have passed since the transmission of the first notice. Customer agrees that Pryze shall not be liable to Customer or to any Users or other third party for any suspension of the Services pursuant to this Section. Delinquent amounts due are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer shall continue to be charged for all Fees during any period of suspension. Pryze may impose a reconnection fee in the event Customer’s account or access is suspended and thereafter Customer requests access to the Software, Services, or Site. If Pryze employs an attorney to enforce the payment terms of this Agreement, it may recover its actual attorney’s fees and costs, including expert witness fees.
(a) Limited Warranty. Pryze warrants that the Software, Services, or Site will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for (i) any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer or its Users, and (ii) any Malicious Code contained in any Third-Party Applications.
(b) DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SOFTWARE, SERVICES AND ALL MATERIALS AND SERVICES ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, Pryze MAKES NO WARRANTY THAT: (i) THE Software, Services, or Site WILL MEET YOUR REQUIREMENTS, (ii) THE Software, Services, or Site WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE Software, Services, or Site WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SOFTWARE, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM Pryze WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS; (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SOFTWARE, PRODUCTS, SERVICES, SITE OR THE SERVER(S) THAT MAKE THE SOFTWARE, SERVICES, PRODUCTS, OR SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SOFTWARE, SERVICES OR SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. Pryze MAY MAKE CHANGES TO THE Software, Services, or Site, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS OR SERVICES LISTED HEREIN, AT ANY TIME WITHOUT NOTICE, UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN. THE Software, Services, or Site MAY BE OUT OF DATE, AND Pryze MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR INFORMATION.
THE Software, Services, or Site MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Pryze IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE USE OF THE Software, Services, or Site OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE Software, Services, or Site IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR, COMPUTER SYSTEM, MOBILE DEVICE, OR ANY OTHER PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
Pryze IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF COMMENTS, OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH Pryze TO ANYONE. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE Pryze SERVICES WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON Pryze MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED TO US SUCH MATERIAL, SERVICE, OR TECHNOLOGY.
ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY Software, Services, or MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US. Through your use of the Service, you may have opportunities to engage in commercial transactions with other users and vendors, such as mechanics, insurance companies and others. You acknowledge that all transactions relating to any PRODUCTS or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between you, the seller or purchaser, of such PRODUCTS and services. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED BY AND BETWEEN YOU AND THIRD PARTIES WHEN FACILITATED THROUGH, OR IN CONNECTION WITH THE Software, Services, or Site, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK.
Pryze DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS; THEREFORE, Pryze DECLINES ALL LIABILITY FOR INACCURATE INFORMATION; FRAUD; NEGLIGENCE; WILLFUL MISCONDUCT; OR ANY OTHER INAPPROPRIATE USE OF THE SITE.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
(c) Warranty Breach. Customers’ and Users’ sole and exclusive remedy for Pryze’s breach of an express warranty relating to the functionality of the Software, Services, or Site shall be that Pryze will use commercially reasonable efforts to modify the Software, Services, or Site to achieve, in all material respects, the functionality described in this Agreement and/or the Registration. If Pryze is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a prorated refund of any prepaid Fees for the remaining terminated portion of the Term. Pryze shall have no obligation with respect to such a warranty claim unless notified of such claim within thirty (30) days of the first instance of any material functionality problem.
7. Limitation of Liability.
CUSTOMER AGREES THAT THE CONSIDERATION Pryze IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY Pryze OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW). THIS INCLUDES, WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE THE SITE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH THE SITE; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (d) SITE CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, RELY UPON, MODIFY, OR DISTRIBUTE.
Pryze SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE Software, Services, or Site OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THE Software, Services, or Site, INCLUDING WITHOUT LIMITATION THE PROCESSING OF FEES, REGISTRATIONS, OR ANY TRANSACTIONS RELATED TO THIS AGREEMENT.
EXCEPT WITH REGARD TO (a) AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT; OR (b) THE INDEMNIFICATION OBLIGATIONS IN SECTION 11, THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OF THE SOFTWARE, SERVICES, PRODUCTS, OR SITE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
THE PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE SERVICES TO CUSTOMER.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. Termination With or Without Cause, Expiration.
(a) Term. This Agreement will remain in effect for the Initial Term. This Agreement will automatically renew for successive one (1) year periods after the Initial Term, unless terminated by either party with thirty (30) days written notice prior to renewal.
(i) Pryze, in its sole discretion, may terminate or suspend Customer or Users access to all or part of the Software, Services, or Site, without notice, for any reason we deem fit. We also reserve the right to discontinue any service or modify any service with no notice to you. If we terminate services to you, we will deactivate your account. Customer or a third party shall not hold us liable if we terminate your account. Customer agrees to hold us harmless and indemnify us from any third party claims arising for the termination of your account. No refunds will be granted to you if we terminate your account. You agree that any material breach of this Agreement will result in irreparable harm to Pryze for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Pryze will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. Customer waives any requirement for posing of a bond or other security if Pryze seeks such and injunction.
(ii) Customer may cancel any monthly event payment for Pryze and all other products, services, and tools that we offer which you subscribe to by notifying us in writing at firstname.lastname@example.org. Your cancellation will be effective within three (3) business days of notice. You are responsible for all fees incurred up to and including the date of cancellation, including the three (3) day delayed effective date. In no event will cancellation constitute a refund of fees already paid to Pryze or any and all other products, services, and tools that we offer which you subscribe to.
(c) Termination Policies. Subject to the requirements of Section 8(b) above, the following policies apply to any termination or expiration of this Agreement:
(i) Upon termination or expiration of this Agreement for any reason, Pryze shall be entitled to all of the Fees due under this Agreement for the entire Term. All Fees paid to Pryze in advance are non-refundable in all circumstances.
(ii) Upon termination or expiration of this Agreement for any reason, Customer shall have no rights to continue use of the Software, Services, or Site.
(iii) Upon termination or expiration of this Agreement, unless this Agreement is terminated as a result of Customer’s material breach, upon written request, Pryze shall make available to Customer a copy of the Customer Data within thirty (30) days of termination. Customer and Users agree and acknowledge that after thirty (30) days following a termination or expiration of this Agreement, Pryze has no obligation to retain the Customer Data or any Content related to Customer or Users and may delete or destroy such Customer Data or Content in its sole and absolute discretion.
(iv) Upon termination of this Agreement caused by Customer’s or Users’ material breach of this Agreement, Customer and Users acknowledge and agree that Pryze may immediately deactivate or delete Customer’s or Users’ account(s) and all related information and files in that account and/or bar any further access to such files, Customer Data or the Software, Services, or Site.
(v) Customer further agrees that Pryze shall not be liable to Customer nor to any third party for deletion, loss, or destruction of Customer Data, provided that Pryze is in compliance with the terms of this Section. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension of your access to the Software, Services, or Site, or any other actions taken by us in connection therewith.
Implementation and training services ordered by Customer as set forth in the applicable Registration shall be performed in accordance with Pryze’s customary practices for the level of services purchased. Pryze does not provide dedicated project management for Customer during implementation unless separately purchased. Implementation is performed remotely unless otherwise specified. Pryze is not responsible, and shall not be liable, for Customer’s configuration decisions or Customer’s compliance with all laws and regulations in Customer’s unique circumstances, nor for any delays in implementation caused by Customer, including but not limited to, Customer delays in providing clean and validated data, if needed, or Customer delays in making necessary business decisions with respect to the configuration of the Software, Services, or Site.
10. Third Party Websites, Products, and Services.
(a) Pryze or third party providers may offer Third Party Applications and related services to Customer or Users hereunder. Customer and Users acknowledge and understand that the use of such Third Party Applications or services shall be subject to separate terms and conditions as otherwise provided to Customer. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED BY AND BETWEEN YOU AND THIRD PARTIES OR THIRD PARTY APPLICATIONS WHEN FACILITATED THROUGH, OR IN CONNECTION WITH THE Software, Services, or Site, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE Software, Services, or Site FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US.
(b) If Customer installs or enables Third Party Applications or services for use with the Software, Services, or Site, Customer agrees that Pryze may allow such third party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Software, Services, or Site, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. The continuing availability of the Third Party Application is subject to the continued effectiveness and terms of the contract between Pryze and the third party provider.
(c) Through your use of the Software, Services, or Site, you may have opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between you the seller or purchaser of such merchandise and services.
(d) The Software, Services, or Site may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that Pryze not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied.
(e) Content available through the Software, Services, or Site may represent the opinions, recommendations, or judgments of a third party, Third Party Application, or other person or entity not connected with Pryze. We do not endorse, nor are we responsible for the accuracy or reliability of any opinion, advice, or statement made by anyone other than a duly authorized Pryze representative speaking in his/her official capacity. Please refer to the specific editorial policies posted on various sections of the Site for further information.
(f) From time to time, Pryze uses third party applications, hardware, software, and services in providing functionality to you. For the purposes of providing functionality to you, including but not limited to (i) email delivery, (ii) calendar sharing, and (iii) user use data, Pryze will pass data, including but not limited to (i) user login credentials, (ii) contact data, (iii) email addresses, and (iv) other stored information for your clients, guests, or event to third parties. Pryze is not required to disclose third parties involved in any of the above described transactions or features.
(a) Pryze’s Indemnity. Pryze shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (“Claim” or “Claims”) alleging that the Software, Services, or Site, as used in accordance with this Agreement, infringes the Intellectual Property Rights of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon a Claim. Excluded from these indemnification obligations are Claims arising from the (i) use of the Software, Services or Site in violation of this Agreement or applicable law; (ii) use of the Software, Services or Site after Pryze notifies Customer to discontinue use because of an infringement claim; (iii) modifications to the Software, Services or Site not made by Pryze; (iv) Claims caused in whole or in part by the acts or omissions of third party suppliers or vendors of any products or services; or (v) use of the Software, Services or Site in combination with any software, application, or service not provided or expressly approved by Pryze.
(b) Pryze’s Indemnification Procedure. If a Claim is brought or threatened, Pryze shall, at its sole option and expense, use commercially reasonable efforts to either (i) procure for Customer the right to continue using the Software, Services or Site without cost to Customer; (ii) modify or replace all or portions of the Software, Services or Site as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate the Agreement and provide to the Customer any pro rata refund of the Fees pre-paid under the Agreement for the remaining portion of the Term. The rights and remedies granted to Customer under this Section 11(a)-(b) state Pryze’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the Intellectual Property Rights of any third party.
(c) Disclosure of Customer Data Indemnity. Pryze shall, at its expense and subject to the limitations set forth in this Section 11, defend Customer from and against any Claims that arise out of or result directly from Pryze’s gross negligence or willful misconduct in preventing unauthorized access to Customer Confidential Information and shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims. Pryze shall, at its own expense, defend and hold Customer harmless from and against any Claims and liability for any Losses from the unauthorized access to Customer Confidential Information. If Pryze complies with this Section 11(c), Customer shall be entitled, as its sole and exclusive remedy for Claims under this Section 11(c), to receive any indemnification rights and to terminate the Agreement and receive any pro rata refund of the Fees pre-paid under the Agreement for the remaining portion of the Term. The indemnity set forth in this Section 11(c) shall not apply to any Claim arising directly or indirectly from failures of networks, telecommunications, or equipment or other failures of third party suppliers or vendors of any Services.
(d) Customer’s Indemnity. Customer shall, at its expense, indemnify, defend, and hold harmless Pryze, its affiliates, its licensors, and their respective directors, officers, employees, and agents from and against any and all Claims, and shall hold Customer harmless from and against any and all Losses, arising out of (i) Customer’s or Users’ use of the Software, Site, or Service; (ii) third party Claims of infringement based on information, data, or content Customer submitted in connection with the Software, Site, or Service; (iii) any fraud, misrepresentation or other breach of this Agreement by Customer; (iv) third party claims, actions, or allegations brought against Pryze arising out of Customer’s use of the Software, Services, or Site; or (v) whatsoever resulting from Customer or its affiliates’, employees’, contractors’, or agents’ breach of HIPAA or any other state or federal medical privacy or electronic privacy laws.
(e) Other Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 11, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 11 are expressly conditioned upon the indemnified party’s compliance with this Section 11(e). The indemnification obligations contained in this Section 11 will survive termination of this Agreement for the later of the conclusion of a Claim or one (1) year.
12. Representations and Warranties.
(a) Customer represents and warrants that Customer (i) is not under the age of thirteen (13); (ii) has not previously been suspended or removed from the Site; and (iii) is not a direct competitor of Pryze or the Site.
(b) Each party represents and warrants, individually, that (i) it has the legal power and authority to enter into this Agreement; and (ii) entering into this Agreement does not conflict with or result in any breach or violation of any of the terms and provisions of any agreement, judgment, order, statute or other instrument or restriction of any kind binding that party.
(c) Customer and Users represent and warrant that (i) they have not falsely identified themselves nor provided any false information to gain access to the Software, Services, or Site; (ii) that all billing information provided to Pryze is correct.
Pryze may make messaging services available to Users. We will not inspect or disclose the contents of private messages except with the consent of the sender or the recipient, or in the narrowly defined situations provided under the Electronic Communications Privacy Act, or as other required by law or by court or governmental order.
14. General Provisions.
(a) Notices. Notices to you may be sent either to the e-mail address supplied for your account or to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the Software, Services, or Site to inform you of changes to the Software, Services, or Site, or other matters of importance, and such broadcasts will constitute notice to you. Any notices or communication under this Agreement will be deemed delivered to the party receiving such communication (i) on the delivery date if delivered personally to the party; (ii) five (5) business days after deposit with a commercial overnight carrier, with written verification of receipt; (iii) five business days after the mailing date, if sent by US mail, return receipt requested; (d) on the delivery date if transmitted by confirmed facsimile; (e) on the delivery date if transmitted by confirmed e-mail; or (f) on the delivery date of transmitted to you through the Software, Services, or Site.
(b) Headings; Merger; Entire Understanding; Waiver; and Severability. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. This document and any exhibit attached hereto constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect. The parties agree that in the event Customer utilizes a purchase order, any term therein that purports to modify or supplement the terms of this Agreement will be void with no force or effect. No amendments, change, or modification of this Agreement will be valid unless in writing signed by the parties. To the extent that anything in or associated with the Software, Services, or Site conflicts with or is inconsistent with this Agreement, this Agreement will control. If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. No waiver by either party of any default will be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
(c) No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
(d) Assignment. Customer and User shall not assign, transfer, or delegate any of its rights and obligations under this Agreement without the prior written consent of an authorized representative of Pryze. Any assignment in violation of this Agreement will be void and of no force and effect. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
(e) Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other. This Agreement sets forth the Parties’ entire liability and exclusive remedies relating to this Agreement and the Software, Services, or Site.
(f) Publicity. With Customer’s consent, Customer agrees that Pryze may reference Customer’s execution of this Agreement and its status as a user of the Site or Services on the Site, in marketing materials and in sales presentations. Pryze may use Customer’s trade names and trademarks in connection with such usage.
(g) Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder)], when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire, earthquake, other potential disasters or catastrophes, such as pandemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or action; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national, regional or local emergency; (vii) strikes, labor stoppages or slowdowns or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; and (ix) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ten (10) consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon five (5) days’ written notice.
(h) Counterparts and Electronic Signatures. If this Agreement is manually signed by the parties, (i) it may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement; and (ii) a signature transmitted via facsimile, scanned original, or third party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement.
(j) Governing Law. Any claims or disputes asserted against Pryze will be governed by and construed in accordance with the laws of the State of Indiana without regard to its rules regarding conflict of laws and will be subject to the exclusive jurisdiction of the federal or state courts of Marion County, Indiana, and the parties hereby consent to personal jurisdiction and venue in such courts and waive any and all objections thereto or to the convenience of any such forum. Any claims or disputes asserted against Customer will be governed by and construed in accordance with the laws of the state in which Customer is located, without regard to its rules regarding conflict of laws and will be subject to the exclusive jurisdiction of the federal or state courts of the state in which the Customer is located, and the parties hereby consent to personal jurisdiction and venue in such courts and waive any and all objections thereto or to the convenience of any such forum.
(k) International Use. Although this Software or Site may be accessible worldwide, Pryze makes no representation the Software, Services, or Site are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal is prohibited. The materials on the Site may not be appropriate or functional for use outside the United States of America. Users located outside the United States of America who use the Site understand this limitation. Those who choose to access the Software, Services, or Site from other locations do so on their own initiative and are solely responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Software, Services, or Site is void where prohibited.
(l) Export Controls. The Software, Services, or Site are subject to United States Export Controls. No software may be downloaded or exported (i) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (ii) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. By downloading or using the Software, Services, or Site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
(m) Survival. Any provisions necessary to interpret the respective rights and obligations of the parties hereunder will survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration. The provisions entitled “Confidentiality,” “Intellectual Property,” “Warranties,” Limitation of Liability,” “Indemnification” and “General Provisions” will survive the termination of this Agreement in accordance with their terms.
(n) Entire Agreement. This Agreement contains the full understanding between the parties and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. If any provision of this Agreement is held invalid by any law or regulation of any government, or by any court, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of this Agreement will remain in full force and effect.
(o) Waiver of jury trial. Each party hereto hereby acknowledges and agrees that any controversy which may arise under this agreement to likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this agreement or the transactions contemplated hereby.