Terms of Use
Revised: March 28, 2024
1. ACCEPTANCE OF TERMS
Prism FM Inc. (“Prism”) provides technology-enabled services, including the Software as a Service offering branded as Prism, the website at https://prism.fm/ and related domains and subdomains, and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Use (this “TOU”). Prism may, at its discretion, update this TOU at any time. You can access and review the most current version of this TOU at the URL for this page or by clicking on the “Terms of Use” link within the Services, or as otherwise made available by Prism.
PLEASE REVIEW THIS TOU CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOU, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOU REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOU, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOU, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 16 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
If you are entering into the TOU as an individual, you represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOU; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER.
IF YOU ARE ENTERING INTO THE TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE SERVICES.
2. RIGHTS
(a) Grant. Subject to and conditioned on your compliance with this TOU, Prism hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services for your internal business purposes. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Prism, including this TOU.
(b) Trademarks. You may not use the Prism names, brands, trademarks, service marks or logos that Prism makes available on the Services (“Marks”). Prism claims trademark protection over all such Marks, and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Prism. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Prism’s benefit.
(c) Responsibility for Content. All information, data (including information received or provided by you through your use of the Services), text, documents, and other materials accessible through the Services (collectively, “Content”) are the sole responsibility of the party from whom such information, data, text, documents, or materials originated. You acknowledge and agree that: (i) the Services may provide access to or rely on Content from third parties (including without limitation, Third Party Services (as defined below)), and such third parties, and not Prism, are entirely responsible for such Content; (ii) you, and not Prism, are entirely responsible for all Content (if any) that you submit, upload, email, transmit, or otherwise make available through the Services or to Prism, including ensuring the accuracy, completeness, and integrity of the Content; and (iii) you are solely responsible for giving all required notices and obtaining all necessary consents before submitting Content through or to the Services or Prism. You further hereby represent and warrant that (i) you have all necessary rights and licenses to make available, submit, provide, and transfer all Content for Prism to exercise its rights granted and fulfill its obligations set forth herein and (ii) that your submission of any Content to Prism will not violate this TOU, any Prism usage guidelines or other policies, any duty of confidentiality owed to another party, any copyright, trademark, right of privacy, right of publicity or any other right of any other party, or any applicable laws, including without limitation intellectual property laws and any privacy or data protection laws governing any personal or sensitive information. You acknowledge and agree that any errors present in your Content will persist through any calculations relying on your Content, and Prism makes no warranty or representation whatsoever regarding the accuracy or completeness of calculations or other results obtained through the Services. It is your sole and complete responsibility to make correct use of the Services and verify the accuracy and completeness of your Content and any calculations, data or other materials you obtain through the Services.
(d) Third Party Services. The Services may also include or provide access to third party products, services, content, or offerings, including advertising for such (together with any Payment Processor (as defined herein), “Third-Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third-Party Services and that such terms and policies are solely between you and the provider(s) of such Third-Party Services. You agree that Prism does not endorse and is not responsible or liable for any issues related to the Third-Party Services and that, to the extent permitted by applicable law and notwithstanding anything to the contrary in this TOU, any Third-Party Services are provided “AS IS” with all faults.
(e) Support. Except as explicitly agreed by Prism in a separate agreement between you and Prism, Prism is not obligated to provide you any support for the Services, and this TOU does not entitle you to any support for the Services. In the event that Prism voluntarily provides you with any support not explicitly agreed to by Prism, it shall not be deemed a commitment by Prism to provide you any support in the future, and Prism may choose, in its sole discretion, to discontinue such support at any time and for any reason without any liability to you.
3. PRIVACY POLICY
In addition to this TOU, the Prism Privacy Policy at https://prism.fm/privacy-policy/ (“Privacy Policy”) applies to how Prism may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Prism may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Prism may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.
4. PROPRIETARY RIGHTS
(a) License to Prism. You grant Prism and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all Content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services, including the right to provide, disclose or otherwise transfer such information to a third-party as requested of Prism by you. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
(b) Retention of Rights. The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Prism retains and reserves all rights not expressly granted in this TOU. You acknowledge and agree that, as between you and Prism, Prism and its licensors owns all rights, title, and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Prism reserves all rights not expressly granted to you in this TOU.
(c) Account. You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Prism immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Prism reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability. For the avoidance of doubt, if Prism reasonably believes that you shared your account or password information with anyone who is unauthorized to use or have such account or password information, Prism reserves the right to immediately suspend your account and terminate this TOU.
5. USER CONDUCT AND RESTRICTIONS
(a) Prohibited Conduct. In your use of the Services, you will not:
(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOU;
(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
(iv) provide use of the Services on a service bureau, rental, or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device;
(v) access the Services for the purpose of developing, marketing, selling, or distributing any product or service that competes with or includes features substantially similar to the Services;
(vi) violate any applicable local, state, provincial, federal, or international law or regulation, or use the Services for any illegal, unauthorized, or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
(vii) remove or obscure any proprietary notice that appears within the Services;
(viii) impersonate any person or entity, including Prism personnel, or falsely state or otherwise misrepresent your affiliation with Prism, or any other entity or person;
(ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
(xi) use spiders, crawlers, robots, scrapers, automated tools, or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
(b) Prohibited Content. You will not: upload, post, email, store, transmit, or otherwise make available any Content that:
(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable;
(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
(iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
(v) contains software viruses or any other code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware;
(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
(vii) consists of information that you know or have reason to know is false or inaccurate.
(c) Enforcement. Prism’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOU by Prism, and does not create a private right of action for any other party. You acknowledge and agree that: (i) Prism has no obligation to pre-screen any Content, although Prism reserves the right in its sole discretion to pre-screen, refuse or remove any Content that violates this TOU. You acknowledge and agree that Prism has no obligation to back up your Content, and that you are solely responsible for backing up your Content. You acknowledge and agree that you may not have access to your Content through Prism or the Services following the expiration or termination of this TOU.
6. FEES AND PAYMENT
(a) Fees. You shall pay all agreed upon fees for all products and services ordered through the Services as set forth in the order confirmation page (“Fees”) in accordance with terms set forth herein and any additional terms set forth on the Services. Prior to any Renewal Term (as defined below), Prism reserves the right to change the Fees upon sixty (60) days’ notice to you. In the event Prism offers, incorporates, or otherwise makes available any additional product features, material upgrades or the like, Prism reserves the right to change the Fees upon thirty (30) days’ notice to you. In the event you materially alter your use of the Services, e.g., add additional venues, change event frequency, change potential ticket amounts, etc., Prism reserves the right to immediately increase the Fees based on its then-current fees.
(b) Payment Terms. All payments will be made in United States dollars and are non-refundable. We accept Visa, Mastercard, American Express, Discover, ACH and PayPal as forms of payment. Prism reserves the right to change which forms of payment we accept at any time. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Services. You agree to pay all Fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment method for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. All payments to Prism are non-refundable. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order places through the Services. With respect to ACH payments, you expressly authorize us to access your bank account and associated information (“ACH Information”), on your behalf and as your limited agent, in order to process such ACH payment. You are exclusively and solely responsible for all payments generated, authorized, and electronically transferred with respect hereto and we shall not be liable or responsible in any way for the accuracy or validity of the ACH Information, including your account and routing numbers and/or who is authorized to access this information. We are not liable to you or any third-party banking institution or vendor for any unauthorized or incorrect payments generated or authorized, nor any fees assessed to you or any bank due to unauthorized, incorrect, or returned payments. You further authorize Prism to share your identity and ACH Information with the applicable Payment Processor for purposes of providing processing such ACH payments and Customer is responsible for the accuracy and completeness of such information. You are solely responsible for complying with any terms set by your bank or credit union with respect to your account and any ACH payments with respect hereto, including any fee terms, such as non-sufficient fund or overdraft fee terms. You agree to maintain a balance or available credit limit in the specified bank account that is sufficient to fund all payments initiated through the Services. You certify that the applicable bank account is in its own name and that you are authorized to use it. You shall indemnify and hold Prism harmless from any claims in connection with your lack of authority, funds or credit in connection with the processing of Fees hereunder.
(c) Payment Processor. Notwithstanding Section 6(b), the Services may include or provide access to various payment processors and point of sale systems (“Payment Processor”). Prism currently uses Stripe as its Payment Processor; however, Prism reserves the right to change payment processors at any time. You hereby (i) acknowledge and agree that Prism uses or may use any such Payment Processor in connection with its collection of Fees, (ii) acknowledge and agree that Prism will not be responsible for any payments or charges as a result of your failure to provide up-to-date and accurate information to any such third party payment provider, and (iii) acknowledge and authorize Prism and its third-party payment processors to charge all Fees to your chosen payment method.
(d) Late Payments. Any payment not received from Customer when due may incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less and Prism reserves the right to revoke or suspend the Services until such time as you bring your account completely current.
(e) Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Prism’s net income, and you shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts.
7. FEEDBACK
If you elect to provide or make available to Prism any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Prism shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
8. CONFIDENTIAL INFORMATION
(a) Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. For the avoidance of doubt, Prism’s Confidential Information shall include the terms and conditions of this TOU, pricing information, and business plans provided herein or otherwise provided or disclosed by Prism.
(b) Non-Disclosure. Each party may use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this TOU and for no other purpose without the prior written consent of the disclosing party. Neither party may disclose to a third party any Confidential Information of the other party. The receiving party shall protect Confidential Information of the disclosing party using the same degree of care it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than reasonable care. The foregoing obligations in this Section 8(b) shall not apply to any Confidential Information that: (i) is known or becomes known to the public in general, other than as a result of a breach of this TOU by the receiving party; (ii) was known by or in the lawful possession of the receiving party prior to receipt from the disclosing party; (iii) is or has been independently developed by the receiving party without use of or reference to Confidential Information of the disclosing party; (iv) is or has been made known or disclosed to the receiving party by a third party without a breach of any obligation of confidentiality to the disclosing party; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, Prism shall be permitted to identify you as a Prism customer.
9. REPRESENTATIONS AND WARRANTIES
Prism and you each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this TOU; (b) the execution and performance of this TOU have been authorized by all necessary corporate or institutional action, as applicable; (c) entry into and performance of this TOU will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this TOU valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this TOU.
10. INDEMNIFICATION
You shall indemnify and hold Prism and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Prism Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Prism; (b) your violation of this TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this TOU.
11. DISCLAIMER OF WARRANTIES
(a) Disclaimer. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRISM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) No Implied Representations and Warranties. PRISM PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
(c) Non-Reliance. ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION. YOU SHOULD NOT RELY ON THE SERVCES AND YOU SHOULD NOT USE THE SERVICES FOR ADVICE OF ANY KIND.
(d) Disclaimer Limitation. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS TOU (UNLESS SUCH LAW PROVIDES OTHERWISE).
12. LIMITATION OF LIABILITY
(a) Limitation of Liability. PRISM PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF PRISM PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL PRISM PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO PRISM FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
(b) Scope. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. BETA SERVICES
(a) Beta Services Disclaimer. AS FURTHER SET FORTH IN SECTION 11, ALL PRISM SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK AND PRISM DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS OF ANY KIND. Prism has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Prism does not assume any obligation to update any Beta Services. In addition, any information about Prism’s roadmap outlines Prism’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this TOU or any contract or other commitment. Prism undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. You expressly acknowledge that the Beta Services have not been fully tested and may contain defects or deficiencies which may not be corrected by Prism. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.
(b) Beta Services Liability Waiver. NOTWITHSTANDING SECTION 11(d), WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, PRISM’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED DOLLARS ($100) FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THE BETA SERVICES.
14. SUSPENSION AND TERMINATION
(a) Term and Automatic Renewal. The duration of your license to use the Services shall commence on the date indicated in an applicable order form, quote or other purchasing document which incorporates this TOU by reference, and end on the end date of the annual or monthly plan as purchased (“Subscription Period”). Your Subscription Period shall automatically renew for one (1) year terms unless you provide notice of non-renewal at least thirty (30) days prior to the expiration of the Subscription Period (each a “Renewal Period”) or applicable Renewal Period. For the avoidance of doubt, any termination of this TOU prior to the end of the current Subscription Period or Renewal Period, as applicable, will take effect at the end of the current Subscription Period or Renewal Period, as applicable and you will continue to have access to the relevant portions of the Services until such time. You must provide any notice of non-renewal prior to 11:59 p.m. UTC on the day before the thirty (30) day deadline to avoid being charged for the next Renewal Period and if you do not timely provide such notice, the Fees applicable to such Renewal Period shall be the price in effect at the time of renewal or the price provided by Prism in any notice of such Fee change in accordance with this TOU.
(b) Termination of Suspension by Prism. If you breach or otherwise violate this TOU, Prism may, with or without notice, immediately suspend or terminate your access and use of the Services.
(c) Termination of Suspension by You. If Prism commits a material breach of this TOU, you must provide notice of such breach to Prism. If Prism does not remedy the breach within thirty (30) from receiving the notice, you may terminate this TOU immediately upon notice to Prism.
(d) Service Modifications. Prism reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Prism shall not be liable to you or any third party for any such modification or discontinuance.
(e) Obligations upon Termination. Upon termination of this TOU for any reason: (i) Prism, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOU shall survive such expiration or termination. Further, you agree that that Prism shall not be liable to you or any third party for any termination of your account or access to the Services.
15. GOVERNING LAW
This TOU shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOU, regardless of the states in which the parties do business or are incorporated.
16. BINDING ARBITRATION AND CLASS ACTION WAIVER
(a) ALL CLAIMS ARISING IN CONNECTION WITH THIS TOU SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOU AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Prism may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 16.
(e) If Prism implements any material change to this Section 16, such change shall not apply to any Claim for which you provided written notice to Prism before the implementation of the change.
17. LEGAL COMPLIANCE
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
18. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOU with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
19. CALIFORNIA USERS & RESIDENTS
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
20. GENERAL PROVISIONS
This TOU constitutes the entire agreement between you and Prism concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Prism with respect to such subject matter. In the event of any conflict between or among this TOU and any end user license agreement, privacy policy or usage guidelines to which this TOU refers, the terms and conditions of this TOU shall take precedence and govern. This TOU may not be amended by you except in a writing executed by you and an authorized representative of Prism. Except as otherwise expressly provided in this TOU, there shall be no third-party beneficiaries to this TOU. For the purposes of this TOU, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOU without the prior written consent of Prism. The failure of Prism to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOU. Any prevention of or delay in performance by Prism hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.