Prisms Subscription Terms and Conditions
If you have executed an Order Form (as defined below) to purchase access to and use of the Services (as defined below), then these Prisms Terms and Conditions (together with your associated Order Form, this “Agreement”) govern your use of the Services. This Agreement will be effective as of the date of execution of your first applicable Order Form (“Effective Date”). To make these Prisms Terms and Conditions easier to read, the terms “Prisms,” “we,” and “us” refers to Prisms of Reality, Inc., and the term “you” refers to you and any organization that you are acting on behalf of as set forth on the applicable Order form. You and Prisms may be referred to herein collectively as the “Parties” or individually as a “Party”.
DEFINITIONS.
(a) “Authorized User” means an employee, contractor, or agent (including your students, if you are an educational institution or district) that you authorize to Use the Services.
(b) “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Company Personal Data are subject. “Data Protection Laws” mayinclude, but not be limited to, the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the California Consumer Privacy Act of 2018 (“CCPA”), the California Privacy Rights Act of 2020 (“CPRA”), the EU General Data Protection Regulation 2016/679 (“GDPR”), the Family Educational Rights and Privacy Act (“FERPA”), and state laws protecting student data.
(c) “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if, as provided by Prisms to you (including any revised versions thereof), they relate to the Services, which may be updated by us from time to time.
(d) “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
(e) “Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form.
(f) “Order Form” means (i) an order form or other ordering document agreed to in writing or electronically by you and Prisms; (ii) a purchase order issued by you and accepted by Prisms in writing or electronically; or (iii) a quote or proposal issued by Prisms and accepted by you including but not limited to the Immersive IVR Algebra Course and Teacher Toolkit Proposal, in each case which references this Agreement and sets forth the applicable Services to be provided by Prisms.
(g) “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
(h) “Personal Data” means “personal data” or “personal information” as defined under applicable Data Protection Laws, which, at a minimum, includes any information relating to an identified or identifiable natural person.
(i) “Platform Data” means any data that is derived or aggregated in deidentified form from (i) Your Data; or (ii) your and/or your Authorized Users’ use of the Services, including any hardware metrics, software event logs, globally unique identifiers for files, usage data or trends with respect to the Services.
(j) “Prisms IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, Documentation and Platform Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(k) “Restricted Data” means data containing Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); card holder data as defined in the Payment Cards Industry Data Security Standard (“PCI DSS”); technology restricted for export under International Traffic in Arms Regulations (“ITAR”); including information of the types catalogued on the U.S. Munitions List; or any other regulated data that is described as Restricted Data in an Order Form.
(l) “Services” means Prisms’ learning platform, online dashboards, mobile applications, and related offerings, which may include adaptive immersive virtual reality (IVR) functionality related to mathematics learning, as more particularly described or identified in the applicable Order Form, and any updates, patches, bug fixes and upgrades that Prisms elects to provide to you.
(m) “Use” means to use and/or access the Services in accordance with this Agreement and the Documentation.
(n) “Your Data” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of you through the Services or to us in connection with your use of the Services, but excluding, for clarity, Platform Data and any other information, data, data models, content or materials owned or controlled by us and made available through or in connection with the Services.
SERVICES; ACCESS AND USE.
(a) Services. Subject to the terms and conditions of this Agreement, Prisms hereby grants you a limited, non-exclusive, non-transferable (except in compliance with Section 11(g)) right to Use the Services during the Term, solely for your internal business purposes in accordance with, and subject to, the Licensed Volume.
(b) Use Restrictions. You will not at any time and will not permit any Person (including Authorized Users) to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) store, transmit or transfer any Restricted Data within or in connection with the Services, (iii) store, transmit or transfer any Personal Data (which, for clarity, excludes data in deidentified form) within or in connection with the Services; (iv) modify or create derivative works of the Services or Documentation, in whole or in part; (v) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (vi) frame, mirror, sell, resell, rent or lease use of the Services to any other Person, or otherwise allow any Person to use the Services for any purpose other than for your benefit in accordance with this Agreement; (vii) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (viii) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (ix) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided, or authorized, by Prisms for use expressly for such purposes; (x) use the Services, Documentation or any other Prisms Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services; or (xi) aid or abet any third party in undertaking any activity prohibited by this Agreement.
(c) Authorized Users. You will not allow any Person other than Authorized Users to Use the Services. You may permit Authorized Users to Use the Services, provided that (i) the Use does not exceed the Licensed Volume; and (ii) you ensure each Authorized User complies with all applicable terms and conditions of this Agreement and you remain fully liable and responsible for all acts or omissions by Authorized Users in connection with their Use of the Services in the same manner as if you conducted such acts or omissions hereunder. You will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Services in accordance with reasonable security protocols, and will promptly notify us if you know or reasonably suspect that any username and/or password has been compromised. Prisms will not be liable, and you will be solely responsible, for (1) any unauthorized access, damage or loss that may occur through the use or misuse of your user names, passwords, hardware or software; or (2) any activities that occur under any account issued to or created by you in connection with your use of the Services, including any unauthorized access or usage of any such account, in each case.
(d) Third-Party Services. Certain features and functionalities within the Services may allow you and your Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. We do not provide any aspect of the Third-Party Services and are not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for you to use the Third-Party Services in connection with the Services.
(e) Third-Party Products. In connection with the Services, Prisms may provide certain third-party hardware, equipment, and technology, including but not limited to virtual reality headsets and audio/video, power, and other auxiliary equipment and cables (“Third Party Products”). Prisms does not manufacture or develop such Third Party Products, and you acknowledge and agree that Prisms is not responsible for Third Party Hardware, and Prisms does not assume and will not have any liability or responsibility to you or any person or entity for Third Party Hardware. Your access and use (including any license thereto) of the Third Party Products is entirely at your own risk and is solely subject to the terms and conditions in a separate agreement between you and the applicable third-party. PRISMS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO THE THIRD PARTY HARDWARE, INCLUDING THAT THE THIRD PARTY HARDWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY SERVICES, SYSTEMS, SOFTWARE, OR APPLICATIONS, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR OR DEFECT FREE. PRISMS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH REGARD TO THIRD PARTY HARDWARE. YOU SHOULD CONSULT WITH THE APPLICABLE THIRD-PARTY MANUFACTURER OF SUCH THIRD PARTY HARDWARE FOR ANY WARRANTY OR PERFORMANCE INFORMATION. NOTHING IN THIS AGREEMENT WILL BE INTERPRETED AS A WARRANTY, EITHER EXPRESS OR IMPLIED, BY PRISMS THAT WOULD EXPAND IN ANY WAY A THIRD-PARTY OR MANUFACTURER’S STANDARD WARRANTY.
(f) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Prisms reserves and, as between the Parties will solely own, the Prisms IP and all rights, title and interest in and to the Prisms IP. No rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(g) Feedback. From time to time you or your employees, contractors, or representatives may provide us with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). You hereby grant Prisms a worldwide, perpetual, irrevocable, royalty-free and fully-paid-up license, with the right to sublicense, to use and exploit all Feedback in connection with Prisms’ business purposes, including the testing, development, maintenance and improvement of the Services.
FEES AND PAYMENT.
(a) Fees. You will pay Prisms the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Except as otherwise provided in the relevant Order Form, Prisms will issue invoices to you on a monthly basis during the Term, and you will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If you have signed up for automatic billing, we will charge your selected payment method (such as a credit card, debit card, gift card/code, or other method available in your home country) for any Fees on the applicable payment date, including any applicable taxes. If we cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and we will attempt to charge the payment method again as you may update your payment method information. In accordance with local law, we may update information regarding your selected payment method if provided such information by your financial institution. For clarity, the Fees do not include any fees payable to any third party for Third-Party Services or Third Party Products, including any fees payable to your hosting provider in connection with the download, upload or transmission of Your Data.
(b) Payments. Payments due to Prisms under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by us or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If you fail to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law. You will reimburse Prisms for all reasonable costs and expenses incurred (including attorneys’ fees) in collecting any late payments or interest.
(c) Taxes. You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Prisms hereunder, other than any taxes imposed on Prisms’ income. Without limiting the foregoing, in the event that you are required to deduct or withhold any taxes from the amounts payable to Prisms hereunder, you will pay an additional amount, so that Prisms receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
CONFIDENTIAL INFORMATION.
(a) As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Prisms IP will be deemed Confidential Information of Prisms. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
(b) The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Prisms may use and modify your Confidential Information in deidentified form for purposes of developing and deriving Platform Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(c) Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will survive termination or expiration of this Agreement.
(d) The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
YOUR MATERIALS AND DATA.
(a) Prisms acknowledges that, as between you and Prisms and except as set forth in Section 5(b), you own and retain all right, title and interest in and to all Your Data.
(b) You hereby grant Prisms a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify Your Data solely for the purpose of hosting, operating, improving and providing the Services and Prisms’ other related products, services and technologies during the Term or as otherwise required by applicable law.
(c) You represent and warrant that you have obtained and will obtain and continue to have, during the Term, all necessary consents, authorizations, rights, authority, and licenses for the access to, and use of, Your Data (including your Personal Data and Personal Data of Authorized Users, provided or otherwise collected pursuant to your privacy policy) as contemplated by this Agreement.
(d) You represent and warrant that Prisms’ use of Your Data in accordance with this Agreement will not violate any applicable laws or regulations (including but not limited to Data Protection Laws) or cause a breach of any agreement or obligations between you and any third party.
(d) You represent and warrant that you have obtained, or are authorized to provide and will provide, any authorizations or consents required by Data Protection Laws to collect, use, share, and process Personal Data of Authorized Users through the Services in accordance with this Agreement.
REPRESENTATIONS AND WARRANTIES.
(a) Mutual. Each Party hereby represents and warrants to the other Party as of the Effective Date that it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement.
(b) Prisms Warranties. Prisms hereby represents and warrants as of the Effective Date that (i) it will provide the Services in a professional and workmanlike manner in accordance with industry standards; and (ii) the Services will substantially conform to the Documentation.
INDEMNIFICATION.
(a) Prisms Indemnification. Subject to Section 7(b), Prisms will defend you against any claim, suit or proceeding brought by a third party (“Claims”) alleging that your Use of the Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify you and hold you harmless against any damages and costs awarded against you or agreed in settlement by Prisms (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Prisms’ obligations under Section 7(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) your breach of this Agreement, negligence, willful misconduct or fraud; (ii) Your Data; or (iii) combinations of the Services with software, data or materials not provided by Prisms.
(c) IP Remedies. If Prisms reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Prisms may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for you to continue Use. If Prisms determines that neither alternative is commercially practicable, Prisms may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to you. In the event of any such termination, Prisms will refund to you a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute your sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Services.
(d) Your Indemnification. Subject to Section 7(e), You will defend Prisms against Claims arising from (i) Your Data, including (A) any Claim that Your Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Your Data violates applicable laws (including Data Protection Laws), rules or regulations; (ii) any of your products, education programs for which the Services are used, or services; (iii) you or any Authorized User’s use of Third Party Hardware; and (iv) Use of the Services by you or your Authorized Users in a manner that is not in accordance with this Agreement or the Documentation and in each case, will indemnify and hold harmless Prisms against any damages and costs awarded against Prisms or agreed in settlement by you (including reasonable attorneys’ fees) resulting from such Claim.
(e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel.
WARRANTY; DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND OTHER PRISMS IP, AND PRISMS PERFORMANCE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND PRISMS MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE PRISMS IP, THE SERVICES, THIRD PARTY HARDWARE, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRISMS HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, PRISMS HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES OR THIRD PARTY HARDWARE WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
LIMITATIONS OF LIABILITY.
(a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING A BREACH OF SECTION 2(b), (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF YOUR PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) General Liability Cap. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING A BREACH OF SECTION 2(b), (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF YOUR PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY YOU TO PRISMS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT PRISMS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
TERM AND TERMINATION.
(a) Term. Unless otherwise specified in an applicable Order Form, the initial term of this Agreement begins on the Effective Date and continues for one (1) year (the “Initial Term”). Thereafter, either Party may elect to renew this Agreement (each, a “Renewal Term,” and together with the Initial Term, the “Term”) for successive one (1) year periods by providing the other Party with written notice of its intent to renew at least sixty (60) days prior to the end of the then-current Term, provided such other Party does not decline such renewal notice within the foregoing sixty (60) day period. If neither Party elects to renew, or if a Party elects to renew but the other Party subsequently declines renewal within the sixty (60) day period, this Agreement shall automatically expire at the end of the then-current Term.
(b) Termination for Breach. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(c) Survival. This Section 10(c) and Sections 1, 2(b), 2(c),2(e), 2(f) 2(g), 3, 4, 5, 6, 7, 8, 9, 10(d), 10(e) and 11 survive any termination or expiration of this Agreement.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) subject to Section 10(e), the rights granted pursuant to Section 2(a) will terminate; (ii) you will immediately cease Use of the Services (other than as set forth in Section 10(e)); and (iii) you will return or destroy, at Prisms’ sole option, all Prisms Confidential Information in your possession or control, including permanent removal of such Prisms Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in your possession or under your control, and at Prisms’ request, certify in writing to Prisms that the Prisms Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect your obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle you to any refund.
(e) Data Retrieval. Upon written notice to Prisms, you will have up to thirty (30) calendar days after termination or expiration of this Agreement (the “Retrieval Period”) to access the Services solely to the extent necessary to retrieve Your Data. During the Retrieval Period, this Agreement will continue in full force and effect, subject to Prisms’ then-current fees and charges for any usage by you during such period. After termination or expiration of the Agreement (including the Retrieval Period, if any): (i) Prisms will have no further obligation to make Your Data available to you and may delete Your Data from the Services; and (ii) you will have no further access to Your Data available within the Services.
GENERAL.
(a) Entire Agreement. This Agreement, including their exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
(b) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent, if to Prisms, to hello@prismsvr.co or, if to you, to the then-current contact information provided by or on behalf of you to Prisms.
(c) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(d) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Brooklyn, New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.
(f) Waiver. To the extent that you may be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement, to claim for yourself or your revenues, assets, or properties, sovereign or governmental immunity from suit, from the jurisdiction of any court (including but not limited to any court of the United States of America or the State of New York), from attachment prior to judgment, attachment in aid of execution of a judgment or from execution of judgment to the extent that in any such jurisdiction there may be attributed such sovereign or governmental immunity (whether or not claimed), you hereby irrevocably agree not to claim and hereby irrevocably waive such sovereign and governmental immunity in respect of suit, jurisdiction of any court, attachment prior to judgment, attachment in aid of execution of judgment, and execution of a judgment.
(g) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement (without the consent of the other Party) to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(h) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in your case, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(i) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
(j) Export Regulation. You will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Services or software, or Your Data, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
(k) U.S. Government End Users. The Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
(l) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
(m) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
(n) Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. Electronic signatures will be given the same effect and weight as originals.
(o) Non-Exclusive Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
(p) Publicity. Except as required by applicable law, neither Party will individually make or issue any press release or public statement related to this Agreement or any of the rights or obligations undertaken by either Party hereunder unless otherwise agree to in writing by both parties prior to the issuance of any such press release or public statement.
(q) Construction of Agreement. Each Party acknowledges and agrees that it has been represented by legal counsel of its choice throughout the negotiation of this Agreement, that it has participated in the drafting thereof, and that this Agreement will not be construed in favor of or against either Party solely on the basis of a Party's drafting or participation in the drafting of any portion of this Agreement.
(r) Captions. Captions of the articles, sections and subsections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement and will not limit or affect the meaning or construction of the terms and conditions of this Agreement.