Terms of Service and Subscription Agreement
These Terms of Service are entered into by and between Prancer Enterprise, a California corporation (“Prancer,” “we” or “our”) and you (“Client,” “you” or “your”). You and Prancer may also be referred to individually as a “Party” and, collectively, as the “Parties.”
IT IS ESSENTIAL THAT YOU READ THESE TERMS OF SERVICE AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.
YOUR USE OF THIS SITE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.
Prancer owns and operates the platform known as “Prancer.io” and such other related online websites and applications as we may create and with which it may partner (collectively, the “Site”) where we offer to our subscribers (each, a “Subscriber” and, collectively, “Subscribers”) automated security validation and penetration testing in the cloud (collectively, the “Service” or “Services”), as more fully described below.
The General Terms & Conditions (“General T&Cs”) and the Subscriber Terms & Conditions (“Subscriber T&Cs”) set out the terms and conditions on which we make the Site available to you and, should you choose to become a Subscriber, provide our Services to you (collectively with the documents referred to herein, this “Agreement”).
You may access most areas of the Site without being a Subscriber (each person who uses or views the Site, whether or not they subscribe, is a “User”), in which case only the General T&Cs will apply to you. Using the Site indicates that you accept the General T&Cs even if you do not become a Subscriber. If you do not accept the General T&Cs, do not use the Site.
Certain areas of the Site may be available only if you are a Subscriber. If you wish to become a Subscriber, you will be asked to confirm expressly that you have read and you accept the Subscriber T&Cs as well as the General T&Cs.
We may revise this Agreement at any time by updating this posting. You should check the Site from time to time to review the current version of this Agreement because they are binding on you. Certain provisions in this Agreement may be superseded by expressly designated legal notices located on particular pages of the Site.
Any rights not expressly granted in these terms are reserved.
GENERAL TERMS & CONDITIONS
In addition to such definitions as are included in this Agreement, the following terms shall have the meanings provided herein.
“Affiliate” of a Party means (1) any corporation, partnership, trust or other entity controlling, controlled by or under common control with such Party; (2) any executive officer, director, trustee or general partner of any Party described in (1) above; or (3) any spouse, lineal ancestor, lineal descendant or member of the household of such Party. For purposes of this definition, the term “control” shall mean the control or ownership of fifty percent (50%) or more of the voting securities in the Party referred to.
“Documentation” means any websites, manuals, videos, documentation, emails and other supporting materials related to the Site that Prancer provides to you or that you can access under this Agreement, including but not limited to Subscriber Resources. Documentation is considered part of the Site.
“Personal Information” means the contents of your profile and any search criteria you may choose.
“Subscriber Resources” means videos, publications, documentation, websites, apps or other benefits that are accessible only to Subscribers.
“Subscription” means the agreement by which we agree to provide the Services and you agree to pay the Subscription Fee.
“Technology” means any software, code or device that uses or processes the foregoing, or any invention (whether or not registered).
“Your Data” means all content and information uploaded to the Site or input by you including but not limited to Personal Information.
2. AGREEMENT TO BE BOUND
You agree to be bound by this Agreement by your use of the Site. If you do not agree with or do not wish to be bound by any provision hereof, cease using this Site immediately.
3.01 While we endeavor to ensure that the Site is available 24 hours a day, we shall not be liable if, for any reason, the Site is unavailable at any time or for any period.
3.02 Access to the Site may be suspended temporarily and without notice in the case of a system failure, maintenance or repair or for any reasons beyond our control.
3.03 Suspension of access to the Site will not necessarily affect the Services, which are separate and distinct from the Site.
3.05 You may not misuse the Site (including, without limitation, by hacking).
3.06 We will co-operate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity of or locate anyone posting any material in breach of this section.
4.01 While we endeavor to ensure that the information on the Site is correct, we do not warrant the accuracy or completeness of the material on the Site. We may make changes to the material on the Site at any time and without notice. The material on the Site may be out of date, and we make no commitment to update such material.
4.02 THE CONTENTS OF THE SITE ARE PROVIDED “AS IS,” AND WE PROVIDE NO WARRANTIES IN RESPECT OF SUCH CONTENTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PRANCER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
4.03 You are permitted to view, print and download extracts from the Site for your own use provided:
(a) no documents or related graphics on the Site are modified in any way;
(b) no graphics on the Site are used separately from the corresponding text; and
(c) our copyright notices and this permission notice appear in all copies.
4.04 Unless otherwise stated, the copyright and other intellectual property rights in all material on the Site (including, without limitation, photographs and graphical images) are owned by us or our licensors. Except as agreed otherwise, any use of extracts from the Site other than in accordance with Section 4.03 is prohibited, and if you violate Section 4.03, your permission to use the Site automatically terminates and you must immediately destroy any downloaded or printed extracts from the Site.
4.05 Subject to Section 4.07, no part of the Site may be reproduced or stored on any other website or included in any public or private electronic retrieval system or service without our prior written permission.
4.06 Links to third-party websites on the Site are provided by us solely for your convenience. If you use these links, you leave the Site. We have not reviewed any of such third-party websites and do not control and are not responsible for their content, security or availability. We do not, therefore, endorse or make any representations about them, any material found on such sites or any consequences of using such websites. If you decide to access any of the third-party websites linked to the Site, you do so entirely at your own risk.
4.07 If you would like to link to the Site, you may do so provided:
(a) you do not replicate any page of the Site;
(b) you do not remove, distort or otherwise alter the size or appearance of any logos used by us on the Site;
(c) you do not create a frame or any other browser or border environment around the Site;
(d) you do not in any way imply that we are endorsing any products or services other than our own;
(e) you do not misrepresent your relationship with us or present any other false information about it;
(f) you do not otherwise use any trademarks owned by Prancer (whether these are registered or unregistered) which are displayed on the Site without our express written permission;
(g) you do not link from a website that is not either owned by you or under your account (e.g., your social media account); and
(h) your website does not contain content that we, in our sole discretion, consider to be distasteful, offensive or controversial, in infringement of any intellectual property rights or other rights of any other person or which doesn’t otherwise comply with all applicable laws and regulations.
4.08 We expressly reserve the right to revoke the right granted in Section 4.07 for any or no reason and to take any action that we deem appropriate.
4.09 You shall fully indemnify us for any loss or damage that we may suffer for breach of Section 4.07.
Prancer owns or licenses all rights, title and interest in and to the Site, the Subscriber Resources as well as any trademarks, copyrights, trade secrets and inventions, whether or not any of the foregoing are registered, and any ideas, suggestions, proposals, research or test results obtained through, from or as a result of your use of the Site and/or feedback provided by you regarding the Site (collectively, “Prancer Assets”). Your rights to the Site are limited to the rights expressly granted to you in this Agreement. Prancer reserves all rights not expressly granted in this Agreement. You agree that you shall not attempt to claim, register or protect any interest in or to the Prancer Assets.
6. DISCLAIMER; WAIVERS
6.01 To the maximum extent permitted by law, we hereby disclaim and you hereby waive any claims against us based on, relating to or arising from the use, inability to use or results of the use of the Site or the Services, any websites linked to it and any materials posted on it, including, without limitation any liability for:
(a) loss of income or revenue;
(b) loss of business;
(c) loss of profits or contracts;
(d) loss of anticipated savings;
(e) loss of data;
(f) loss of goodwill;
(g) any unauthorized person uses your username and/or password to access the Site with any result, including but not limited to making changes in authorizations;
(h) the Site is totally or partially inoperative or inaccessible;
(i) use of the Site;
(j) viruses or other malicious software are transferred to your computer or other device by using the Site;
(k) there are bugs, errors or inaccuracies in the Services or the results produced by the Site;
(l) third-party content, actions or inactions on or with respect to the Site;
(m) a suspension or other action taken with respect to your account by us;
(n) deletion, corruption or destruction of any of Your Data; and
(o) for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
For purposes of this section, any reference to Prancer shall include Prancer’s Affiliates, joint venture associates and the owners, directors, officers, employees, agents, contractors and vendors of each.
6.02 No waiver by Prancer of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by Prancer in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
7. REPRESENTATIONS & WARRANTIES
You represent and warrant that:
(a) if you are an individual, you are 18 years of age or older and capable of entering into and agreeing to be bound by this Agreement;
(b) if you are an entity, the entity is duly organized and in good standing in its state of formation and authorized to enter into this Agreement;
(c) you are solely responsible for compliance with local laws in connection with your use of the Site; and
(d) it is legal for you to view the Site in the jurisdiction to which you are subject.
(a) If you are not a Subscriber, we may, in our sole discretion, restrict or terminate your access to and/or use of the Site without prior notice where:
(i) there is a regulatory or statutory change limiting our ability to provide access to the Site;
(ii) there is any event beyond our reasonable control preventing us from providing access to the Site (for example, and without limitation, technical difficulties, capacity problems and communications failures); or
(iii) we consider that you are abusing the Site or are otherwise acting in violation of this Agreement.
(b) If you are a Subscriber, your access to the Site will be subject to the termination provision of the Subscriber T&Cs.
9. GOVERNING LAW; DISPUTE RESOLUTION
9.01 This Agreement will be governed by and interpreted in accordance with the laws of the State of California, USA, without giving effect to any principles of conflict of laws.
9.02 Amicable Dispute Resolution.
(a) In the event of a dispute between the Parties hereunder (each, a “Dispute”), then, prior to commencing other legal proceedings (other than an action for interim injunctive relief pending final resolution of the Dispute), each Party will refer the Dispute to its designated representative to work in good faith to attempt to resolve the Dispute amicably for a period of Forty Five (45) calendar days from the date of written notice of such Dispute from one Party to the other.
(b) Disputes that cannot be settled amicably shall be resolved by arbitration, as provided herein below. Notwithstanding the foregoing, nothing in this section shall prevent a Party from seeking interim injunctive or other equitable relief in any court of competent jurisdiction to preserve the status quo or to prevent irreparable harm pending resolution of any Dispute.
(a) Procedure. Any claim, dispute or controversy arising out of or relating to this Agreement and not resolved amicably shall be submitted by the Parties to binding arbitration in San Diego County, California, by a single (1) arbitrator in accordance with the rules of the American Arbitration Association (“AAA”), governed by the laws of the State of California. Each Party shall have full rights of discovery in any such proceeding.
i) Decision Final. The Parties agree to exercise their respective rights under AAA Rules to cause any arbitration proceeding under this section to be finalized and a decision rendered by the arbitrator as soon as reasonably practicable, but in no event more than six (6) months after commencement of such arbitration proceeding.
ii) Confidentiality. Except as otherwise required by law, the Parties and arbitrator shall maintain as confidential all information and documents obtained during the arbitration process, including the resolution of the dispute.
iii) Jurisdiction. Each Party irrevocably and unconditionally (i) consents to the jurisdiction of any such proceeding and waives any objection that it may have to personal jurisdiction or the laying of venue of any such proceeding; and (ii) knowingly and voluntarily waives its rights to have disputes tried and adjudicated by a judge and jury except as otherwise expressly provided herein.
iv) Final Judgment. Any award rendered by the arbitrator(s) shall be final and binding upon the Parties. Judgment upon the award may be entered in any court of competent jurisdiction.
(b) Equitable Relief. Notwithstanding anything to the contrary in this Agreement, a breach of this Agreement may cause irreparable harm to the affected Party for which monetary damages are not a sufficient remedy. In such event, the affected Party may, without waiving any other rights or remedies and without posting a bond or other security, seek an injunction, specific performance or other equitable remedy.
(c) In the event of a request to a court of competent jurisdiction for equitable relief, THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL AT ITS ADDRESS LISTED HEREIN.
9.04 You agree that you may bring a claim against Prancer only in your capacity as an individual User, not as the member of or participant in any group or class.
9.05 The non-prevailing Party in any arbitration or court proceeding shall pay the other Party’s costs and expenses (including reasonable attorneys’ fees) and reimburse the other Party for its portion of the arbitration costs. In the event that neither Party wins the arbitration totally, reimbursement shall be made proportionally in accordance with the AAA Rules. If a Party fails to proceed with arbitration, unsuccessfully challenges the arbitration award, or fails to comply with the arbitration award, the other Party shall be entitled to costs, including reasonable attorneys’ fees and disbursements, for having to compel arbitration or defend or enforce the award.
9.06 The exercise of any right or remedy herein provided shall be without prejudice to any other right or remedy provided herein, at law, or in equity.
10. LIMITATION OF LIABILITY
To the extent permitted by law, in no event shall Prancer have any liability to you for any indirect, special, incidental, punitive, or consequential damages (including for loss of profit, revenue, or data) arising out of or in connection with the Site, your use of the Site or this Agreement, however caused, and under whatever cause of action or theory of liability brought (including under any contract, negligence, indemnification or other tort theory of liability) even if advised of the possibility of such damages. To the extent permitted by applicable law, Prancer’s total cumulative liability to you or any third-party arising out of or in connection with the Site, your use of the Site or this Agreement, from all causes of action and all theories of liability, will be limited to and will not exceed the greater of One Hundred US Dollars ($100.00) or the amount paid by you to Prancer during the Twelve (12) months immediately preceding the claim. The Parties agree that this section represents a reasonable allocation of risk.
11.01 No Third-Party Beneficiaries.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Subject to the foregoing sentence, this Agreement is for the exclusive benefit of the Parties and there shall be no third party beneficiary to any of the provisions of this Agreement except the indemnitees (other than the Parties) described in the Subscriber T&Cs.
11.02 Independent Contractor.
Prancer is and will be deemed to be an independent contractor with respect to you in regard to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Prancer and you.
You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise. Prancer may assign this Agreement, in part or whole, without your consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Prancer may amend this Agreement at any time, in its sole and absolute discretion; provided any changes in the Subscriber T&Cs shall be binding only upon renewal of the Subscription (unless Prancer terminates your Subscription). Your continued use of the Site after the effective date of any such modification (or, in the case of modifications to Subscriber T&Cs, after the renewal of your Subscription) shall be conclusive evidence of your consent to be bound by such modification.
11.05 Force Majeure.
Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failure, governmental orders (including but not limited to quarantines and business closures) and power failures.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
11.07 Section Headings.
Section headings are included for ease of reference only and have no binding effect.
If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any Party as the drafter. This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
11.10 Blocked Persons.
Each Party represents and warrants to the other that it is not a person or entity listed on Appendix A to Title 31, Chapter V of the Code of Federal Regulations (aka “Suspected Terrorist List”) (a “Blocked Person”). Each Party acknowledges that the reason for such certificate is that Executive Order 13224 and the regulations promulgated pursuant thereto provide that any transfer of property or interest in property with a Blocked Person is null and void and the Party entering such transaction with a Blocked Person could be subject to monetary penalties or imprisonment in accordance with 31 CFR 594.701.
11.11 Entire Agreement.
This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement
Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 4.02, 5, 6, 8, 9-11.
SUBSCRIBER TERMS & CONDITIONS
(For Subscribers Only, in addition to the General T&Cs)
These Subscriber T&Cs are in addition to the General T&Cs which, together,
comprise the Agreement that you enter into with Prancer to become a Subscriber.
All the provisions of the General T&Cs apply to Subscribers.
1. REGISTRATION, IN GENERAL
1.01 Subscriptions are not available to persons under 18 years of age.
1.02 Each Subscription is for a single user only. We do not permit you to share your username and password with any other person nor with multiple users on a network. Furthermore, your Subscription may not be transferred except with the prior consent of Prancer.
1.03 Responsibility for the security of any passwords issued rests with you and you are responsible for all actions taken with your username and password.
2. YOUR REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties contained in the General T&Cs, you represent and warrant the following:
(a) If you are subscribing as an individual, you are 18 years of age or older.
(b) If you are signing on behalf of an entity:
(i) the entity has been duly organized and is in good standing;
(ii) the entity is authorized to enter into this Agreement; and
(iii) you are authorized to enter into this Agreement on behalf of the entity.
(c) You are using the Services with no intent to broadcast, republish, misrepresent, edit, copy, display or in any way use the Services for any purpose other than your personal use.
3. THE SERVICES
3.01 Prancer shall provide the Subscription Services as described in the Subscription Order Form for your respective Subscription.
3.02 Prancer shall provide the Support Services as described in the Subscription Order Form for your respective Subscription.
3.03 The Services include the Subscription Services, Support Services and Documentation.
4.01 The Services shall commence on the date you subscribe and pay the indicated Fees (the “Commencement Date”) and continue for one (1) year (the “Initial Term” or “Term”). Subsequent to expiration of the Initial Term, this Subscription shall automatically renew (each a “Renewal Term” and, together with the Initial Term, the “Term”) on the same terms and conditions unless Prancer notifies you of any changes in these T&Cs except that Prancer may provide notice not less than Sixty (60) days prior to such Renewal Term of a change in the Subscription Fees which change shall be effective upon renewal in the absence of a Non-renewal Notice from Client to Prancer.
4.02 Not less than Two (2) months prior to the end of the Initial Term or any subsequent Renewal Term, you may terminate this Agreement without cause by written notice and there shall be no renewal (“Non-renewal Notice”). If your Non-renewal Notice is received by Prancer less than Two (2) months prior to the end of the then-current Term, this Agreement shall renew for an additional Renewal Term and the termination shall become effective at the end of such Renewal Term.
4.03 If you terminate your Subscription for any reason at least Two (2) months prior to the end of the Initial Term or any subsequent Renewal Term, such termination will be effective at the end of the then-current Term, you will continue to have access to the Services for the remainder of the then-current Term, your Subscription will not renew, but you will not receive any refund, credit or allowance with respect to the Subscription Fee.
4.04 Prancer may terminate the Services and/or this Agreement without cause upon Thirty (30) days’ notice or at any time upon written notice with cause. If we terminate the Services and this Agreement without cause, the portion of your Subscription Fees allocable to the unexpired then-current Term shall be refunded. If we terminate with cause, no portion of the Subscription Fees paid shall be returned, refunded or credited to you.
4.05 Either Party may terminate this Agreement upon written notice if the other Party committed a material breach of this Agreement and failed to cure such breach within Ten (10) business days of notice of such breach by the non-breaching Party.
4.06 Notwithstanding the foregoing, if either Party gives the other a termination notice, the receiving Party may, in its sole and absolute discretion, terminate the Agreement at any time prior to the effective date of the terminating Party’s notice.
4.07 Upon termination of this Agreement, Prancer shall deliver to Client the results of Services rendered through the effective date of termination.
5. YOUR USE OF THE SITE
5.01 You will:
(a) be responsible for your compliance with this Agreement;
(b) use reasonable efforts to prevent unauthorized access to the Subscription Services, Support Services and Subscriber Resources, and notify Prancer promptly of any such unauthorized access or use;
(c) use the Site only in accordance with the Documentation and all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions (as provided in more detail below);
(d) be solely and exclusively responsible for the security of the usernames and passwords issued to you, and Prancer shall be entitled to rely on the authority of any person using the username and password in providing information to and taking all actions that the authorized user would be entitled to take or direct;
5.02 You will not, directly or indirectly:
(a) make the Site or the Subscriber Resources available to or use the Site or the Subscriber Resources for the benefit of anyone other than yourself;
(b) sell, resell, license, sublicense, distribute, rent or lease the Site or the Subscriber Resources, or include the Site or the Subscriber Resources in a service bureau or outsourcing offering;
(c) use the Site to store or transmit malicious code;
(d) interfere with or disrupt the integrity or performance of the Site or any data contained therein;
(e) attempt to gain unauthorized access to the Site or Subscriber Resources or any related systems or networks;
(f) hack or attempt to hack the Site;
(g) upload content that is inappropriate, as determined by Prancer in our sole and absolute discretion, onto our servers;
(h) permit direct or indirect access to or use of the Site or the Subscriber Resources in a way that circumvents a contractual usage limit, if any;
(i) copy the Site or the Subscriber Resources or any part, feature, function, or user interface thereof;
(j) frame or mirror any part of the Site or the Subscriber Resources other than as permitted in the Documentation;
(k) access, record or copy the Site or the Subscriber Resources in order to build a competitive product or service; or
(l) reverse engineer, disassemble or decompile the Site or the Subscriber Resources.
6. SUBSCRIPTION FEES
6.01 Throughout the Term, you agree to pay to Prancer the fee for the Services as specified in the Subscription Order Form chosen by you (the “Subscription Fee”) for which a major credit card will be required. Upon each Renewal Term, the credit card provided by you shall be charged the applicable Subscription Fee.
6.02 Commencing after the Initial Term, Prancer may notify you of a change in the Subscription Fee or other costs and such new fees shall take effect upon renewal of this Agreement unless Client notifies Prancer within Thirty (30) days of such notice that Client does not approve of the change(s) and elects to terminate this Agreement.
6.03 In the event the payment method provided by you is declined, we will notify you and you will have the opportunity to provide an alternative method of payment within Five (5) business days of notice of decline. If a payment is not effectively processed, the Services may be suspended pending payment or terminated, in our sole discretion.
7.01 While Prancer endeavors to ensure that the information provided through the Services is correct, Prancer does not warrant its accuracy or completeness.
7.02 THE SERVICES ARE PROVIDED “AS IS,” AND WE PROVIDE NO WARRANTIES IN RESPECT THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PRANCER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
Prancer shall implement and maintain appropriate measures in accordance with generally accepted industry standards to (i) protect against any anticipated threats or hazards to the security or integrity of Your Data; and (ii) protect against unauthorized access to Your Data.
9. INTELLECTUAL PROPERTY
9.01 Technology included within or used in connection with the Services shall at all times be the sole and exclusive property of Prancer.
9.02 Except as expressly granted herein, this Subscription does not transfer or grant any rights in any Technology, copyrights, trademarks, trade secrets or other intellectual property of either Party (collectively, the “Rights”) to the other. Each Party expressly waives and disclaims any interest whatsoever in the Rights of the other Party.
9.03 For purposes of clarity, data or information obtained or created by Prancer as a result of the Services shall at all times be the sole and exclusive property of Client; provided, however, Prancer shall have the unlimited perpetual and royalty-free right to use such data and information that does not relate to any specific matter or account but which may aid Prancer in identifying and resolving issues of security issues of Client or others.
10. CONFIDENTIAL INFORMATION
10.01 Each Party (the “Receiving Party”) acknowledges that, in connection with this Agreement, it will have access to and/or be given by or on behalf of the other Party (“Disclosing Party”) information which is expressly designated “Confidential” or would be understood by a reasonable person to be confidential (collectively, “Confidential Information”). Confidential Information means any and all information which is possessed by or developed for a Party and which relates to such Party’s existing or potential business or technology, which information is generally not known to the public, and which information such Party seeks to protect from disclosure to its existing or potential competitors or others, and includes, without limitation, source code, business plans, business strategies, business know-how and techniques, marketing plans, and the identities and business preferences of current or prospective customers or vendors. Confidential Information also includes information received by a Party from others that such Party has an obligation to treat as confidential. Confidential Information includes information and documents whether or not they are marked “confidential” or carry any other marks or designations including but not limited to Trade Secrets. “Trade Secrets” means all information possessed by or developed for a Party, including, without limitation, a compilation, program, device, method, system, technique, formula, pattern, or process to which all of the following apply: (i) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) the information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.
10.02 Confidential Information of a Party shall remain the sole and exclusive property of such Party except as to Confidential Information which, by its nature and usage, is or becomes the joint Confidential Information of both Parties. The Parties agree that even if not so marked, all client lists, work product, know-how and methodologies are Confidential Information of the respective Party.
10.03 The Receiving Party agrees not to use, disclose, distribute or disseminate, or allow others to use, disclose, distribute or disseminate Confidential Information of Client except as expressly permitted under this Agreement. The Receiving Party shall use at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information, but in no event less than reasonable care. The Receiving Party agrees to restrict access to such Confidential Information to only those employees or contractors who need such Confidential Information in order for Prancer to exercise its rights or perform its obligations hereunder.
10.04 The foregoing restrictions will not apply to information that the Receiving Party can demonstrate (i) was known to the Receiving Party at the time of disclosure to the Receiving Party by the Disclosing Party as shown by the files of the Receiving Party in existence at the time of disclosure other than as a result of a violation of an obligation of confidentiality to the Disclosing Party; (ii) has become publicly known through no wrongful act of the Receiving Party; (iii) has been rightfully received by the Receiving Party from a third party authorized by the Disclosing Party to make such disclosure without restriction; (iv) has been approved for release by written authorization of the Disclosing Party; or (v) has been independently developed by the Receiving Party without any use of Confidential Information and by employees or other agents of the Receiving Party. In addition, each Party shall be entitled to disclose the other Party’s Confidential Information to the extent such disclosure is requested by the order or requirement of a court, administrative agency or other governmental body provided that the Party required to make the disclosure shall provide prompt, advance notice thereof to enable the other Party to seek a protective order or otherwise prevent such disclosure.
10.05 All Confidential Information shall be surrendered to the Disclosing Party upon the request of the Disclosing Party; provided, however, that Confidential Information may be retained by the Receiving Party to the extent that retention of such Confidential Information is necessary to comply with its internal document retention policies aimed at legal, corporate governance or regulatory compliance and any such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth herein, notwithstanding any termination of this Agreement. The Receiving Party shall not be deemed to have retained or failed to return or destroy any Confidential Information if Confidential Information received or stored in digital format is deleted from local hard drives and/or off-site storage so long as no attempt is made to recover such Confidential Information from servers or back-up sources, provided that any such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth herein, notwithstanding any termination of this Agreement.
11.01 Client and its Affiliates, owners, principals, officers, employees and agents shall be referred to, collectively, as “Client Indemnitees.” Prancer and its Affiliates, owners, principals, officers, employees, and agents shall be referred to, collectively, as “Prancer Indemnitees.”
11.02 Prancer agrees to and shall indemnify, defend (with legal counsel reasonably acceptable to Client Indemnitees) and hold Client Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from (a) any misrepresentation by, or breach of any covenant or warranty of Prancer contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by Prancer hereunder; or (b) any suit, action, proceeding, claim or investigation against Client Indemnitees which arises from or which is based upon or pertaining to allegations of infringement by Prancer of the intellectual property rights of a third party.
11.03 Client agrees to and shall indemnify, defend (with legal counsel reasonably acceptable to Prancer Indemnitees) and hold Prancer Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from (a) any misrepresentation by, or breach of any covenant or warranty of Client contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by Client hereunder; (b) any violation of this Agreement by Client; or (c) any suit, action, proceeding, claim or investigation against Prancer Indemnitees which arises from or which is based upon or pertaining to Client’s acts or omissions including but not limited to disclosure of information to Prancer.
11.04 If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against Client Indemnitees or Prancer Indemnitees, written notice thereof shall be given by Client Indemnitees to Prancer or Prancer Indemnitees to Client, as the case may be, within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of any indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that the indemnifying Party demonstrates damage caused by such failure. After such notice, the indemnifying Party shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying Party ‘s reasonable cost and expense. The indemnitees shall cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The indemnifying Party shall not, without the prior written consent of the respective indemnitees, effect any settlement of any proceeding in respect of which the indemnitee(s) is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by the indemnifying Party and includes an unconditional release of the indemnitees from all liability on claims that are the subject matter of such proceeding.
11.05 If either Party shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then the respective indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as such indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by the indemnifying Party upon demand by the respective indemnitees.
12. ASSUMPTION OF RISK AND WAIVER
You expressly and unconditionally assume any risks and waive any and all claims against Prancer, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions, and regardless of the source or the cause of the issue including but not limited to failures of third-party sites or applications with which the Site interacts:
(a) any personal injury to you or anyone else relating to, caused by or connected to the Site, the Services or the Documentation;
(b) any damage to property of yours or anyone else’s relating to, caused by or connected to the Site, the Services or the Documentation;
(c) use of the Site, the Services or the Documentation;
(d) a suspension or other action taken with respect to your account by Prancer; or
(e) deletion, corruption or destruction of any of Your Data.
Client agrees and covenants to not directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment or working relationship of any employee or contractor of Prancer during the Term plus One (1) year following the termination or expiration of this Agreement.
All notices upon you shall be effective when sent by email to the email address you used when you registered or as you subsequently modified it.
All notices to Prancer must be in writing and delivered in person, or sent by registered or certified mail or nationally or internationally recognized overnight courier, with all fees prepaid to Prancer at the address indicated below or as subsequently modified by Prancer. For a notice to Prancer to be valid, an email copy shall accompany each of the foregoing modes of noticing a Party.
8910 University Center Lane, Suite 400
San Diego, California 92109
Either Party may, at any time, change its mail or delivery address by giving the other Party ten (10) calendar days prior written notice.
The effective date of any written notice personally delivered or sent by a recognized overnight courier shall be the date of receipt. The effective date of any email notice to Client shall be the next business day after the email is sent.
In addition to those provisions of the General T&Cs which survive termination of this Agreement, those provisions of these Subscriber T&Cs that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 5.02, 7.02, and 9 – 15.