Premise Data Corporation

Terms and Conditions 

THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE HOSTED SOLUTION PROVIDED BY PREMISE DATA CORPORATION (“PREMISE DATA”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF PREMISE DATA’S SOLUTION, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ON THE DATE IT IS AGREED TO BY CUSTOMER (SUCH AS BY EXECUTION OF AN ORDER DOCUMENT – AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN PREMISE DATA AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES OR SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.

 

1. PREMISE DATA SERVICES. 

1.1 Access to Solution.

During the term of an applicable Order Document (as defined below), Customer may access and use (on a software-as-a-service basis) the Premise Data software-as-a-service platform (“Premise Data Services”) solely for the purposes for which they are provided and only in accordance with the terms and conditions of this Agreement and any end user documentation and other instructions provided (including as posted the Premise Data website) by Premise Data (“Documentation”). An “Order Document” is a schedule, statement of work and/or other ordering document executed by the parties (and may include an online purchase process made available by Premise Data).

For clarity, no software code to the software-as-a-service solution will be provided to Customer. In the event any software code is provided (such as a software ‘client’ to use in connection with the software-as-a-service solution), Premise Data grants Customer a non-exclusive, non-sublicensable, non-transferrable, license to internally use such software (in object code form only) for the purposes of accessing and using the software-as-a-service solution. Use of the Premise Data Services is permitted only by the number of employees of Customer specified during the purchase process (“Permitted Users”). Customer shall require that all Permitted Users keep any Premise Data Services user ID and password information confidential. Customer shall be responsible for all actions taken using Customer’s accounts and passwords in its possession. Customer must immediately notify Premise Data in the event a Permitted User violates this Agreement. In addition, as identified in the purchase process or Documentation, other use limitations may apply.

1.2 Customer Contractors.

Customer may permit its independent contractors who are not competitors of Premise Data (“Contractors”) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of the Premise Data Services by such Contractor is for the sole benefit of Customer. For clarity, use of the Premise Data Services by Contractors and Customer must be, in the aggregate, within the use restrictions, if any, specified at the time of purchase.

1.3 General Restrictions.

Customer shall not (and shall not allow any third party to); (a) rent, lease, copy, provide access to, or sublicense any Premise Data Services to any third party (except as authorized by Section 1.2 above); (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of the Premise Data Services (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law (and then only upon advance notice to Premise Data), (c) modify or create derivatives of any of the Premise Data Services or any Documentation, (d) send or store in or via the Premise Data Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights, (e) send or store in or via the Premise Data Services any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, (f) use the Premise Data Services in a manner that Customer should reasonably know may damage or otherwise harm and Premise Data systems, networks, equipment, or data, (g) use the Premise Data Services for any purpose, or in any manner, that violates any laws, regulations or third party rights, (h) remove, alter, or obscure any proprietary or other notices contained on or in any Premise Data Services (including any reports or data printed from any Premise Data Services) or Documentation, (i) scrape the Premise Data Services, or use web crawlers or the like or (j) publicly disseminate information regarding the performance of the Premise Data Services (such as benchmarking results). All information referenced in Section 1.3(j) is Premise Data’s Confidential Information (as defined in 3 10) even though it may be originally generated or discovered by Customer. All of the foregoing restrictions will also apply to software, if any, provided by Premise Data.

1.4 Evaluation Use.

To the extent the Premise Data Services are provided on a no-fee, evaluation basis (in either case, “Evaluation Basis”), the Premise Data Services may be suspended or terminated by Premise Data at any time, for any or no reason, with or without notice. Customer acknowledges that other sections of this Agreement contain terms and conditions specific to services provided on an Evaluation Basis.

2. DATA INSIGHTS.

2.1 General.

The Premise Data Services will allow Customer to access information and other data Premise Data receives from its third-party providers (“Data Insights”). Data Insights may be Collected Data or Licensed Data (as defined and set out below).

2.2 Collected Data.

To the extent Data Insights are collected specifically for Customer – as set forth in an Order Document – Customer will own such data (“Collected Data”). Premise shall and hereby does assigns all intellectual property rights it has in the Collected Data to Customer. Collected Data deletion requests must be communicated with Premise Data. The Customer can request media files (photos, videos, audio) be deleted. Premise Data does not provide a data/content archiving service. Premise Data agrees only that it shall not intentionally delete any Collected Data which is less than thirty (30) days old. During the 30-day period immediately following termination of this Agreement, Premise Data will provide Customer with access to the Collected Data for download. Data not retrieved within 30 days may be deleted by Premise Data in its discretion. Any additional transition assistance activities will be at Premise Data’s discretion and may be subject to its then-current rates.

2.3 Licensed Data.

To the extent Premise Data provides Data Insights it makes accessible to its other customers, or otherwise collects outside of this Agreement, (“Licensed Data”), Premise Data grants Customer a non-exclusive, non-sublicensable, non-transferrable (except with an assignment of this Agreement), perpetual license to use the data for its own internal business purposes. Such data may not be resold or otherwise directly commercialized.

3. CUSTOMER DATA.

3.1 Generally. “Customer Data” means all data inputted by Customer into the Premise Data Services (e.g. email addresses for Premise Data Services login and collaboration documents for Collected Data activities).

Customer shall ensure that Customer’s use of Premise Data Services and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable laws and regulations, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants to Premise Data that Customer has sufficient rights in the Customer Data to grant the rights granted to Premise Data in Section 3.2 below and that the Customer Data does not infringe or otherwise violate the rights of any third party. If Customer exports information from a jurisdiction outside the United States, Customer will ensure that it has all legal rights to do so (including, without limitation, in compliance with applicable privacy laws and regulations).

3.2 Rights in Customer Data.

As between the parties, Customer shall retain all right, title, and interest (including all intellectual property rights) in and to the Customer Data provided to Premise Data.

3.3 Uploads of Customer Data.

Customer shall be responsible for providing all Customer Data to Premise Data and shall provide such Customer Data in a format consistent with the technical compatibility requirements of common collaborative software (e.g., Microsoft Office, Google Drive, Databases).

4. OWNERSHIP.

Customer acknowledges that, except as expressly set out herein with respect to Collected Data, no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to the Premise Data Services. Customer agrees that, as between the parties, Premise Data retains all right, title, and interest (including all patents, copyrights, trade secrets and other intellectual property rights) in and to (i) the Premise Data Services and Documentation and all related underlying technology; and (ii) any intellectual property it develops in connection with this Agreement. In the event Customer provides Premise Data with any suggestions, ideas, improvements, or other feedback with respect to any aspect of any of the foregoing (“Feedback”), Customer shall and hereby does grant Premise Data (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute, and otherwise exploit such Feedback for any purpose.

5. FEES

5.1 Fees and Payment.

Unless otherwise specified in an Order Document, all fees are payable by Customer at the time of registering for the Premise Data Services, (or on the date of renewal, as applicable). Use of Premise Data Services beyond agreed-to limits may subject Customer to overage fees as set forth at the time of purchase. In addition, Premise Data may adjust the fees charged to Customer hereunder on notice (electronic notice is sufficient) delivered to Customer at least forty-five (45) days prior to the end of the then-current Engagement Term (and such fees will take effect beginning on the next term). If Customer does not agree to such new fees it’s sole remedy is to elect not to renew as set out in Section 6.1. Notwithstanding the foregoing, Premise Data may, without notice, increase the fees for any term over the fees from the preceding term by the greater of 3% and CPI. Customer is required to pay any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Premise Data. Except as expressly set forth in Section 7.2, all fees are non-cancellable and non-refundable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. In addition, Customer will reimburse Premise Data for all costs of collection. All fees must be paid in US dollars unless otherwise agree to by the parties.

5.2 Suspension of Service.

If Customer’s account is five (5) days or more overdue, in addition to any of its other rights or remedies, Premise Data reserves the right to, with or without notice, suspend Customer’s access to the applicable Premise Data Services without liability to Customer until such amounts are paid in full.

6. TERM & TERMINATION.

6.1 Term.

This Agreement is effective as of the Effective Date and will terminate as set forth below. Each Order Document will have the term set forth thereon. Thereafter, each Order Document will automatically renew for successive renewal terms of equal length to its initial term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. If no initial term is set forth in an Order Document, the initial term for such Order Document will be one (1) year.

6.2 Termination.

Either party may terminate this Agreement on thirty (30) days written notice if there are no Order Documents in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment) (provided that, such notice must provide sufficient detail regarding the breach and expressly state the intent to terminate if not cured); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within ninety (90) days thereafter). With respect to Customer’s breach of its payment, electronic notice to Customer is sufficient hereunder. Termination of this Agreement will automatically terminate all Order Documents.

6.3 Effect of Termination.

Upon any termination of this Agreement, (i) Customer shall immediately cease all use of and access to the Premise Data Services, and (ii) each party will return to the other party all of such other party’s Confidential Information. Termination of this Agreement is not an exclusive remedy for Premise Data, and the exercise of any remedy by Premise Data under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

6.4 Survival.

The following Sections shall survive any termination of this Agreement: 2.3 (with respect to data provided prior to termination), 4, 6.3, 6.4, 7.3, 8, 10, 11 (to the extent set forth therein) and 12, as well as all license and use restrictions and all outstanding payments obligations.

7. WARRANTIES

7.1 Mutual Warranties.

Each party represents and warrants that (i) it is a corporation or other legally organized entity in good standing under the laws of the state in which it was formed, (ii) it has the power and authority to execute, deliver, and perform its obligations under this Agreement, and (iii) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms. In addition, each party represents and warrants it will comply with all applicable laws and regulations with respect to privacy and data security – including, without limitation, the EU General Data Protection Regulation (“GDPR”). If the GDPR applies, the parties will execute Standard Contractual Clauses (pursuant to European Commission’s decision of 5 February 2010) for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council.

7.2 Services Warranty.

Premise Data warrants, for Customer’s benefit only, that it will use commercially reasonable efforts to ensure that the Premise Data Services will operate in substantial conformity with the applicable Documentation on a 24/7 basis. Premise Data’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in Premise Data’s sole discretion and at no charge to Customer, (a) to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects or otherwise remedies the reported non-conformity, or if Premise Data determines such remedy to be impracticable, (b) to allow Customer to terminate this Agreement and receive a refund of any fees Customer has pre-paid for use of the Premise Data Services for the unexpired remainder of the then-current term. The limited warranty set forth in this Section shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared or (ii) if the error was caused in whole or part by misuse of the Premise Data Services (other than by Premise Data or its contractors), unauthorized modifications to the Premise Data Services by Customer (or any third acting on its behalf), or Customer’s, or any hardware or software or services not provided by Premise Data.

7.3 Warranty Disclaimer.

EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1 AND 7.2, THE PREMISE DATA SERVICES AND DATA (AND SOFTWARE, IF ANY) ARE PROVIDED “AS IS”. NEITHER PREMISE DATA NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING THE FOREGOING, SECTION 7.2 WILL NOT APPLY TO ANY SERVICES PROVIDED ON AN EVALUATION BASIS (OR OTHERWISE FOR FREE).

8. LIMITATION ON LIABILITY.

NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO PREMISE DATA DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, OR THE SERVICES ARE PROVIDED ON AN EVALUATION BASIS (OR OTHERWISE FOR FREE), SUCH AMOUNT SHALL BE US$1,000.00). IN ADDITION, PREMISE DATA WILL NOT BE LIABLE FOR THE COST OR PROCUREMENT OF SUBSTITUTE SERVICES OR DATA. PREMISE DATA WILL HAVE NO LIABILITY WITH RESPECT TO CUSTOMER’S USE OF THE DATA.

9. IP INDEMNITY.

Premise Data shall indemnify and hold Customer harmless from and against all third-party claims (and all resulting, to the extent payable out-of-pocket to unaffiliated third parties: damages, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees) (“Losses”) arising out of infringement by the Services of any third-party intellectual property rights (except to the extent caused by Customer Data, instructions, or specifications). Premise Data’s indemnity obligations are contingent on Customer providing it with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance. Premise Data will not be responsible for any settlement it does not approve in writing. In the event a claim arises, Premise Data may terminate this Agreement on thirty (30) days written notice – but it will refund to Customer all fees paid in advance for the remainder of the term.

10. CONFIDENTIAL INFORMATION.

Each party (as “Recipient”) agrees that any technical, business, or other information it obtains from the other party (as “Discloser”) constitutes the confidential property of Discloser (“Confidential Information”). The Licensed Data is Premise Data’s Confidential Information (regardless of the fact its constituent parts may be publicly available). For clarity, to the extent Customer has negotiated pricing with Premise Data, such pricing is Premise Data’s Confidential Information. Except as expressly authorized herein, the Recipient will (a) hold in confidence (using its best efforts) and (b) not use – any of Discloser’s Confidential Information. Recipient’s nondisclosure obligation shall not apply to information which it can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information or (ii) is or has become generally available to the public through no fault of the Recipient. Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, Discloser shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.

11. LOGO USAGE.

During the term of this Agreement and for a reasonable wind-down period thereafter, Premise Data may use Customer’s name and logo on its website, in case studies of the like, and in marketing materials as part of a general list of customers (including online marketing).

12. GENERAL TERMS.

12.1 Assignment. 

Neither party may assign or transfer this Agreement without the other party’s prior written consent; provided that, either party may, without consent, assign this Agreement to a successor to all or substantially all of its business or assets. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

12.2 Force Majeure.

Neither party shall be liable be liable to the other party for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events beyond its reasonable control (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. In the event a Force Majeure Event prevents a party from performing for more than ten (10) days, the other party may terminate this Agreement on written notice. This Section will not apply to payment obligations.

12.3 Subcontractors.

Premise Data may use the services of subcontractors for performance of services under this Agreement; provided that, Premise Data is fully liable for their acts and omissions in connection herewith.

12.4 Independent Contractors.

The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.5 Severability.

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.6 Governing Law; Jurisdiction and Venue.

This Agreement shall be governed by the laws of the State of New York and the United States without regard to the conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent available, the JAMS Streamlined Rules will apply. The arbitration shall take place in New York, New York, in the English language, and the arbitral decision may be enforced in any court. Subject to the foregoing arbitration provision, all disputes arising in connection herewith will be subject to the sole and exclusive jurisdiction and venue of the state and Federal courts located in New York, New York (and the parties each hereby consent and submit to such jurisdiction and venue). The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

12.7 Notice.

Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to Customer, the address listed by Customer during the Premise Data Services registration process (or as otherwise later changed by Customer in its Premise Data’ account) and (ii) if to Premise Data, 405 W 13th St., Floor 3, New York, NY 10014 Attn: Legal (or at such other address as may be given by Premise Data at any time) – and shall be deemed to have been received by the addressee (iii) if given by hand, immediately upon receipt; (iv) if given by overnight courier service, the first business day following dispatch, or (v) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Premise Data (such as for breach) must also be provided in email to: [email protected] (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer is sufficient to the extent expressly stated in this Agreement.

12.8 Amendments; Waivers.

This Agreement may only be amended by mutual written agreement of the parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. To the extent this Agreement conflicts with any Order Document, the Order Form shall control (provided that any reference to any other Customer agreement – such as, any Customer online click-through in a Customer’s purchase order – shall not apply).

12.9 Entire Agreement.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, provided that if Customer and Premise Data have executed a separate, negotiated, written agreement with respect to the subject matter hereof, such separate agreement will apply to the exclusion of this Agreement.