This Master Services Agreement sets forth the terms and conditions pursuant to which Prismic.io Inc. ("Prismic", “us,” “we” or “our”) will provide to you (“you,” “your” or “Customer”) with access to and use of Prismic back office content management system entitled as more particularly described at www.prismic.io (the “Solution”) when you place your order for the Solution (the “Order”). This Agreement is effective on the date (the “Effective Date”) on which you place your Order which will require you to agree to these terms and conditions.
1. Certain Definitions
“Confidential Information” means (i) for you, information provided to us with your Order as well as any content uploaded to the Solution; (ii) for us, pricing and other Solution terms, any user IDs, software license keys or passwords that we may provide you, marketing and sales information, know-how, audit and security reports, product development plans, data center designs, or other proprietary information or technology provided to you (including Software); and (iii) for both you and us, trade secrets or any information designated as Confidential. Information developed without reference to another party’s Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party other than through a violation of confidentiality, will not be Confidential Information. For the avoidance of doubt, information transmitted to us or stored as part of the Solution will not be considered Confidential Information.
“Services” means any and all services performed by us as described in the applicable Order, including but not limited to any services performed in connection with a Solution.
“Software” means any software, library, utility, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us in connection with the Solution. Software includes software locally installed on your systems and software accessed through the internet or by other remote means including websites, portals and cloud-based solutions to utilize a Solution in accordance with this Agreement.
“Third-Party Products” means any non-Prismic data, software or services provided, made available or otherwise used by us in connection with the Solution or any other Customer provided data, software or services.
2. Order and Payment
You will pay all fees in accordance with each Order, by the due date and in the currency specified in the Order. If Prismic has the legal obligation to pay or collect taxes for which you are responsible, the appropriate amount shall be invoiced to and paid by you unless you provide Prismic with a valid tax exemption certificate authorized by the appropriate taxing authority. Other than as expressly set forth, all amounts are non-refundable, non-cancelable, and non-creditable. You agree that we may bill your credit card for renewals, bandwidth overages on set limits or scopes of use, additional options, and unpaid fees, as applicable. In the event you fail to make payment as per payment terms set forth in this Agreement or in any applicable Order, and legal enforcement by Prismic is deemed necessary, you agree to pay all reasonable legal fees and costs incurred by Prismic.
3. Term Renewals
The “Term” for any Solution begins on the Effective Date and extends for the period indicated in your Order. Unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term or unless auto-renewal is explicitly disclaimed in an Order, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, we may renew this Agreement and the related Solution(s) in our discretion for a successive Term at our then-current list price. We will automatically invoice you or charge your credit card, as applicable, each auto-renewal.
Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within sixty (60) days of receipt of written notice describing the nature of the breach. Notwithstanding the foregoing, we may terminate this Agreement upon written notice to you if (i) you are delinquent on your payment obligations; (ii) you violate the AUP (as defined in Section 10); (iii) a change in our relationship with a third-party Software or technology provider has had a material adverse effect on our ability to provide the Solution; (iv) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets; or (v) we decide, in our sole discretion, to discontinue the product or service offering you are using. In the event we terminate pursuant to this Section 5, we will not be liable to you. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination. The following provisions shall expressly survive the termination or expiration of this Agreement for any reason: Section 1, 6, 8B, 8C, 13, 14 and 15.
You may not assign this Agreement or any rights or obligations under this Agreement to a third-party without our prior written consent. We may assign, sell or otherwise transfer our rights to a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of control will be deemed an assignment.
6. Proprietary Rights
Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the intellectual property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable trade secrets and proprietary rights of Prismic and/or our licensors and are protected by laws. Any intellectual property developed by us during the performance of the Solution will belong solely and exclusively to us and our licensors.
B. Professional Services
If professional services (such as implementation, training, consulting, etc.,) are included in any Order (“Professional Services”), in addition to the provisions in any mutually agreed upon statement of work relating to such Professional Services, the following provisions shall apply. We retain all ownership rights to any and all deliverables or work product created in connection with the performance of the Professional Services, excluding, any pre-existing technology or materials supplied by you for incorporation into such deliverable or work product. We grant you a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any such deliverable or work product, to the extent necessary to permit you to use the deliverable or work product in connection with the Solution during the Term. You acknowledge that nothing in this Agreement shall restrict or limit us from performing similar services for any third party.
7. Suspension, Deletion and Modification
We may suspend all or part of the Solution or your access thereto: (i) if you are delinquent on payment obligations; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject Prismic to liability.
We may delete your data stored through the Solution (a) sixty (60) days following any termination by us pursuant to Section 4 of this Agreement, or (b) if you fail to renew an applicable Order within sixty (60) days of expiration.
We may modify the functionality or features of the Solution at any time, provided that the modification does not materially denigrate the functionality of the Solution (as described in the applicable Order) during the Term. We will not be liable to you or any third-party for any such modification. From time to time, we may change the location where the Solution is provided; provided, however, we will remain responsible for the delivery of the Solution.
It may be necessary for us to perform scheduled or unscheduled patches, updates, repairs or maintenance, which may temporarily degrade the quality of the Solution or result in a partial or complete outage of the Solution. Although we cannot guarantee that you will receive advance notice of repairs or maintenance, we will endeavor to provide at least 7 days notice of scheduled updates and patches.
8. Access and Use
For the applicable Term, and subject to the restrictions below, we grant you a non-exclusive, limited, revocable license under our intellectual property rights to access and use the applicable Software as permitted by this Agreement.
Unless otherwise expressly permitted in this Agreement, without our prior written consent, you will not: (i) permit any third-party to use or copy any of the Software; (ii) modify, translate, alter, adapt, publish, transmit, remove, reverse engineer, decompile, disassemble, reproduce, distribute, display, create derivative works, compilations or collective works based on or otherwise exploit any of the Software; (iii) merge the Software with any other software; (iv) sell, sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Software; (v) benchmark the performance of the Software or Solution without our prior written consent; or (vi) use the Software to operate in or as a time-sharing, outsourcing or service bureau environment or in any way allow third-party access to the Solution.
C. Rights Reserved
THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted herein, Prismic retains all right, title and interest in and to the Software and in all related intellectual property and its derivative works, including registrations, applications, renewals and extensions of such rights (the "Works"). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereinafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, republication or performance of the Works, except as specifically permitted herein, is strictly prohibited. Prismic retains all rights not expressly granted herein.
D. Open Source Software
A portion of the Software may contain or consist of open source software, which you may use under the terms and conditions of the specific license under which the open source software is distributed.
E. Free Trials
If we offer you a free trial, we will make the Solution available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the Solution or (b) the start date of any subscription plans ordered by you. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SOLUTION DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SOLUTION BEFORE THE END OF THE TRIAL PERIOD. DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITH NO EXPRESS OR IMPLIED WARRANTY.
F. Beta Testing
From time to time we may invite you to try, at no charge, functionality, products or services that are not generally available to the public ("Beta Services"). You may accept or decline any such trial in your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available.
10. Acceptable Use Policy
You must use reasonable security precautions in connection with your use of the Solution and comply with all laws and regulations applicable to your use of the Solution. Specifically, you must not share your password, let anyone else access your account, or do anything that might jeopardize the security of your account. You must cooperate with our reasonable investigation of Service outages, security issues and any suspected breach of this Agreement. Our Acceptable Use Policy follows (the “AUP”):
You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party's networks or equipment and from accessing the Solution using automated means such as “bots” or other computer programs or scripts; (2) permitting other individuals or entities to copy the Solutions; (3) providing unauthorized access to or use of any user IDs, software license keys or passwords that we may provide you in respect of specific Solutions to enable you to activate or access the Solution; (4) attempting to probe, exploit, scan or test the security or vulnerability of the Solutions or of a system, account or network of Prismic or any of our customers or suppliers; (5) interfering or attempting to interfere with service to any user, host or network; (6) engaging in fraudulent, offensive or illegal activity of any nature; (7) uploading any content, or engaging in any activity, that is pornographic, obscene, harassing, abusive, slanderous or defamatory or that encourages, promotes or expresses racism, hatred, bigotry or violence; (8) engaging in any activity that infringes the intellectual property rights or privacy rights of any individual or third-party; (9) transmitting unsolicited bulk or commercial messages; (10) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (11) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Solutions (except for tools with safety and security functions); (12) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any Prismic (or Prismic supplier) facilities used to deliver the Solutions. Prismic may in its sole discretion determine whether your use of the Solutions is a violation of this AUP; or (13) uploading individual files larger than 20 MB. In order to enforce our AUP, we may, but are not obligated to, monitor your content uploaded to the Solution. We may, in our sole discretion, refuse to post, remove, or require you to remove, any of your content, in whole or in part, to the extent we believe it to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
We may investigate suspected violations of this AUP. We may report suspected violations of this AUP to applicable law-enforcement authorities or third-parties and may cooperate with any investigation of illegal activities associated with your use of the Solutions, the system or network, or any violation of this AUP. We may revise the AUP to add or modify restrictions on use of the Solutions, provided that the changes are commercially reasonable, consistent with industry norms and apply to all customers.
11. Customer Obligations
You are responsible for keeping your account permissions, billing and other account information up to date. You must pay when due the amounts for the Solution stated in the applicable Order or other agreement between you and Prismic.
You represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any Customer data and content (including any text, software, music, sound, photographs, graphics, video, messages or other materials) in connection with our performance of the Service or your use of the Software (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, contractors, and end users). You are responsible for any content that may be lost or unrecoverable through your use of the Services. You are encouraged to archive your content regularly and frequently.
You are responsible for the use of the Solutions by any person who gains access to your data or the Solution as a result of your failure to use reasonable security precautions, even if the use was not authorized by you.
12. Customer License Grant
Customer grants to Prismic the necessary rights to operate any Customer-provided software, including a non-exclusive, royalty-free license (which shall terminate upon termination of the applicable Solution) to install, deploy, use, execute, reproduce, display, perform and run such software (including, without limitation, guest operating systems and application programs), as are reasonable or necessary for Prismic to perform or provide the Solution. Customer grants to Prismic a nonexclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer data as is reasonable or necessary for Prismic to perform or provide the Solution. It is Customer’s responsibility to obtain, at its own expense, all licenses, consents and approvals required to grant to Prismic the rights and licenses in this Agreement.
YOU MUST BE 18 YEARS OF AGE OR OLDER TO CREATE AND ACCOUNT AND ACCESS THE SOLUTION.
THE SOLUTION, TOGETHER WITH ALL THIRD-PARTY PRODUCTS AND OPEN SOURCE SOFTWARE PROVIDED BY PRISMIC, IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. PRISMIC MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOLUTION OR ANY OF THE SOFTWARE OR SERVICES INCLUDED THEREIN, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR NON-INFRINGEMENT.
PRISMIC'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PRISMIC IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY PRISMIC.
PRISMIC WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOLUTIONS PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; LOST OR CORRUPTED DATA, PROGRAMS OR SOFTWARE; LOSS OF USE OF A SYSTEM OR NETWORK; LOSS OF BUSINESS OPPORTUNITY; BUSINESS INTERRUPTION OR DOWNTIME.
PRISMIC'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY SOLUTIONS PROVIDED HEREUNDER) IN ANY 12-MONTH PERIOD WILL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PRISMIC.IO DURING THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT FOR THE SPECIFIC SOLUTION GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
A. Indemnification by Us
We will defend and indemnify you from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action that the Solution (excluding Third-Party Products and open source software) infringes or misappropriates that third-party’s intellectual property rights enforceable in the United Sates. In addition, if we receive prompt notice of a claim that, in our reasonable opinion, is likely to result in an adverse ruling, then we will, at our option, (i) obtain a right for you to continue using the Software or that allow us to continue performing the Services; (ii) modify the Software or Services to make them non-infringing; (iii) replace the Software or Services with a non-infringing equivalent; or (iv) refund any prepaid fees for the allegedly infringing Services that have not been performed or provide a reasonably depreciated or pro rata refund for the allegedly infringing Software. Notwithstanding the foregoing, we will have no obligation under this Section for any claim resulting or arising from (1) modifications of the Software or Services that were not performed by or on behalf of us; (2) the combination, operation or use of the Software or Services in connection with a Third-Party Product (the combination of which causes the claimed infringement); or (3) our compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. This Section states Customer’s exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate us to provide any greater indemnity to Customer.
B. Indemnification by You
You will defend and indemnify the Prismic from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to (a) your failure to obtain or maintain any appropriate license, intellectual property rights or other permissions, regulatory certifications or approvals associated with technology or data provided by you; (b) your breach of this Agreement or violation of any applicable law, regulation or order; (c) your use of the Solution; and (d) your provision of your own services, software, technology or solution.
C. Mutual Indemnification
Each party will defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
D. Indemnification Procedure
The indemnified party will (i) promptly notify the indemnifying party in writing of any claim; (ii) grant the indemnifying party sole control of the defense and resolution of the claim; and (iii) cooperate with the indemnifying party, at the indemnifying party’s expense, in defending and resolving the claim. Failure to provide prompt notice, however, will not affect the indemnifying party’s obligations to the extent the failure does not materially prejudice the indemnifying party’s ability to defend the claim. In no event will an indemnifying party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified party from all liabilities and obligations with respect to the claim.
Confidential Information may not be disclosed except to affiliates, employees, agents and subcontractors who “need-to-know” it and who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other party before making the disclosure. In our performance of the Solution, we may obtain information related to your use of the Solution. You agree that such information is not confidential and we may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Solution or in support of generic marketing activities related to the Solution.
B. Independent Contractor Relationship
No Third-Party Beneficiaries. The parties are independent contractors. No provision of this Agreement creates an association, trust, partnership or joint venture or imposes fiduciary duties, obligations or liability between you and us. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
C. Force Majeure
Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which performance is delayed by circumstances beyond its reasonable control, such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of internet traffic carriers or actions or omissions of regulatory or governmental authorities (including the passage of laws or regulations or other acts of government or law enforcement that impact the delivery of the Solution) (a “Force Majeure”). The delayed party will promptly provide the other party with written notice of the Force Majeure. The delayed party’s performance will be excused for the duration of the Force Majeure, but if the Force Majeure lasts longer than thirty (30) days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party. In the case of a Force Majeure, Customer acknowledges and agrees that its data may not be recoverable and accepts responsibility for re-entry of such data.
D. Export Compliance
You will comply with all applicable import, re-import, export and re-export control laws, orders and regulations. Specifically and without limitation, you shall not permit any access or use of the Solution in a United States embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria). We are not responsible for determining whether any Third-Party Product used in the performance of the Solution satisfies the local regulatory requirements of the country in which the Third-Party Product is delivered, and we are not obligated to provide any Software or perform any Services where we become aware that the resulting Software or Services do not satisfy local regulatory requirements.
E. Entire Agreement; Severability
This Agreement is the entire agreement between you and Prismic with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and Prismic for the Solution. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, the provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
F. Governing Law
This Agreement and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND PRISMIC (including any affiliates, contractors and agents, and each of their respective employees, directors and officers) arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, any relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third-parties who are not signatories to this Agreement), Prismic's advertising, or any related service (a "Dispute" ) shall be governed by the laws of the State of Delaware, without regard to conflicts of law.
G. Jurisdiction and Venue
The parties agree that any Dispute will be brought exclusively in the state or federal courts located in the State of Delaware. The parties further agree to submit to the personal jurisdiction of the state and federal courts located in the State of Delaware, and agree to waive any objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers must be in writing to be effective.
Notice to us under this Agreement must be in writing and sent by overnight courier or certified mail to Prismic.io Inc at 185 Alewife Brook Parkway, Suite 210 Cambridge Massachusetts 02138, USA. Attention: Legal Notice.