THESE TERMS OF SERVICE GOVERN OUR CUSTOMER’S ACQUISITION AND USE OF PRACTIS’ SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF PRACTIS SERVICES, TECHNOLOGY, OR MOBILE APPLICATION OR FOR DISCOUNTED SERVICES, INCLUDING FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE DISCOUNTED OR FREE SERVICES.
BY (1) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING DISCOUNTED OR FREE SERVICES AS REFERENCED ABOVE, THE INDIVIDUAL ACCEPTING THIS AGREEMENT (“CUSTOMER”) AGREES TO BE SUBJECT TO AND ABIDE BY THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES FOR AS LONG AS THEY REMAIN AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE TO ABIDE BY THESE TERMS OF SERVICE, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. Practis’ direct competitors are prohibited from accessing the Services, except with Practis’ prior written consent.
This Agreement was last updated on October 5th, 2022 and is effective between Customer and Practis as of the date of Customer’s accepting this Agreement (the “Effective Date”).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” means Practis services or functionality that may be made available to Customer at Practis’ sole discretion at no additional charge, which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by Practis from publicly available sources or its third-party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means electronic data and information submitted by or for Customer to the Services.
“Free Services” means Services that Practis makes available to Customer free of charge or at a discount. Free Services exclude Services offered as a free trial and Purchased Services.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-Practis Application” means any software, mobile application, other technology not provided to Customer by Practis pursuant to the Services, or otherwise specified by Practis to Customer for use in conjunction with the Services.
“Order Form” means an ordering document or online orders specifying the Services to be provided hereunder that is entered into between Customer or any of its Affiliates and Practis, including any addenda and supplements thereto. By entering into an Order Form an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms must clearly include details of the Service(s) to be provided by Practis, including associated fees, and other related details. If multiple Order Forms will apply to this Agreement, they will be numbered sequentially. Each mutually executed Order Form is intended to define a separate contract particular to that order, incorporating by reference this Agreement. An Order Form may also contain additional terms or conditions, if mutually agreed upon by Practis and Customer, which apply specifically to that particular contract and Order Form. Any such additional terms or conditions will control over conflicting terms in the Agreement only if and to the extent the Order Form specifically so states. Customer agrees that each Order Form will be signed by a representative having the authority to bind Customer, and that Practis may presume that such representative has such binding authority. A binding contract is created when both parties have executed the Order Form.
“Practis Materials” means the Services and related specifications, Practis Technology, and Documentation.
“Practis Technology” means Practis’ proprietary software, mobile application, and other related Practis technology—including but not limited to algorithms, compounds, compositions, conceptions, data, designs, developments, discoveries, documentation, drawings, enhancements, equipment, formulae, formulations, ideas, improvements, information, innovations, inventions, know-how, machines, materials, methods, modifications, molecules, plans, procedures, processes, products, programs, protocols, requirements, reports, results, show-how, software, specifications, systems, techniques, technological developments, technology, works of authorship, writings and all other materials and/or technology, whether or not patentable, copyrightable or susceptible to any other form of legal protection—provided via or pursuant to the Services, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.
“Professional Services” means such additional services performed by Practis pursuant to a separate statement of work executed between Practis and Customer. Practis will provide such resources and utilize such Practis employees and/or consultants, using the methods and means, all as Practis deems necessary to perform the Professional Services. Customer will provide Practis any Customer materials needed for Practis to perform the Professional Services, and hereby grants Practis a royalty-free, non-exclusive, worldwide license to use the same to enable Practis to perform the Professional Services for Customer.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Practis.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Practis without charge, for whom a Service has been provisioned),and to whom Customer (or, when applicable, Practis at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, and agents of Customer.
Provision of Purchased Services.
Practis will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable Practis standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Practis shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Practis’ reasonable control, including, for example, an act of God, act of government, flood, fire, epidemic, pandemic, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Practis employees), Internet service provider failure or delay, Non-Practis Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Practis’ provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
Protection of Customer Data.
Practis will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Practis will make Customer Data available to Customer for export or download. After such 30-day period, Practis will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
From time to time, Practis may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Any use of Beta Services will be subject to the Beta Services terms. Users registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Practis in its sole discretion.
Practis may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as specified to Customer. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Practis, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Practis will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Practis terminates Customer’s account, except as required by law, Practis will provide Customer a reasonable opportunity to retrieve its Customer Data.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER BEFORE THE END OF THE FREE TRIAL (A) PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, (B) PURCHASES APPLICABLE UPGRADED SERVICES, OR (C) EXPORTS SUCH DATA.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY PRACTIS” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND CUSTOMER UNDERSTANDS AND AGREES THAT PRACTIS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE PRACTIS’ LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000). WITHOUT LIMITING THE FOREGOING, PRACTIS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PRACTIS AND ITS AFFILIATES FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
Unless otherwise provided in the applicable Order Form, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Practis regarding future functionality or features.
Services and Content are subject to usage limits specified in Order Forms. If Customer exceeds a contractual usage limit, Practis may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Practis’ efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Practis’ request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
Customer will (a) be responsible for Users’ compliance with this Agreement, Order Forms, and any associated materials (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Practis Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Practis promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Order Forms, associated materials, and applicable laws and government regulations, and (e) comply with terms of service of any Non-Practis Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Practis’ judgment threatens the security, integrity or availability of Practis’ services, may result in Practis’ immediate suspension of the Services. Practis will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates that are specified in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Practis Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Practis Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Practis intellectual property except as permitted under this Agreement, an Order Form, or any other restrictions provided to Customer, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine or have determined for it whether the Services are within the scope of any patent.
Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and are not refundable or creditable if actual usage by Customer is less that purchased, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment.
Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. Customer shall be responsible for providing complete and accurate billing and contact information to Practis and shall notify Practis of any changes to such information.
The invoice will be issued in electronic format and delivered by email.
Receivables Point of Contact.
Each valid Order Form or other document approved by Practis will include a receivables point of contact, including a person’s name, title, email and phone number, for receivables.
If any invoiced amount is not received by Practis by the due date, then without limiting Practis’ rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Practis may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
Suspension of Service and Acceleration.
If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue Practis may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations will give Customer at least 10 days’ prior notice that its account is overdue before suspending services to Customer.
Practis will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” sections above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Practis' fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. For clarity, Practis is solely responsible for taxes assessable against it based on its income, property, and employees.
Reservation of Rights.
Subject to the limited rights expressly granted hereunder, Practis, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Access to and Use of Content.
Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement, and the Documentation.
By accessing or using the Services, Customer grants Practis the limited right and license to list and display its name, trademark, and logo in connection with Practis customer lists and marketing materials in print or on the web to announce that Customer is using the Services. Customer may terminate this right and license upon written notice to Practis once Customer access to the Services has been terminated. Customer will have the right to disclose its use of Services but not the terms or specifics (including pricing terms) of its relationship with Practis, unless Practis approves such disclosure in writing prior to such disclosure.
Customer grants Practis the right and license to develop and publish case studies, subject to the protection of Customer’s confidential information, based on Customer’s use of Practis’ services and the resulting performance benefits.
Customer grants Practis the right and license to use videos (for marketing purposes) developed by Customer that highlight their use of the Practis services.
Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Practis includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Practis services.
Protection of Confidential Information.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Practis may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or provider of a Non-Practis Application to the extent necessary to perform Practis’ obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Practis warrants that during an applicable subscription term (a) this Agreement, the Order Forms and any associated materials provided to Customer will materially accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Practis will not materially decrease the overall security of the Services, and (c) Practis will not materially decrease the overall functionality of the Services under any executed Order Form. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
Indemnification by Practis.
Practis will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Practis in writing of, a Claim Against Customer, provided Customer (a) promptly gives Practis written notice of the Claim Against Customer, (b) gives Practis sole control of the defense and settlement of the Claim Against Customer (except that Practis may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Practis all reasonable assistance, at Practis’ expense. If Practis receives information about an infringement or misappropriation claim related to a Service, Practis may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Practis’ warranties under “Practis Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Practis, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services for which there is no charge; or (4) a Claim against Customer arises from Content, a Non-Practis Application or Customer’s breach of this Agreement, applicable Order Forms, or other materials provided to Customer by Practis regarding use of the Services.
Indemnification by Customer.
Customer will defend Practis and its Affiliates against any claim, demand, suit or proceeding made or brought against Practis by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-Practis Application provided by Customer, or (c) the combination of a Non-Practis Application provided by Customer and used with the Services, infringes or misappropriation such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Practis”), and will indemnify Practis from any damages, attorney fees and costs finally awarded against Practis as a result of, or for any amounts paid by Practis under a settlement approved by Customer in writing of, a Claim Against Practis, provided Practis (a) promptly gives Customer written notice of the Claim Against Practis, (b) gives Customer sole control of the defense and settlement of the Claim Against Practis (except that Customer may not settle any Claim Against Practis unless it unconditionally releases Practis of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Practis arises from Practis’ breach of this Agreement, applicable Order Forms, or other materials provided to Customer by Practis regarding use of the Services.
This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Term of Agreement.
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
Term of Purchased Subscriptions.
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 60 days before the end of the relevant subscription term.
A party may terminate this Agreement for cause (i) upon 60 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination.
If this Agreement is terminated by Customer in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the term of all Order Forms, through the termination date, to the extent permitted by applicable law. Practis will refund any previously paid fees to Customer for Services for any period beyond the termination date. In no event will termination relieve Customer of its obligation to pay any fees payable to Practis for the period prior to the effective date of termination.
The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Practis retains possession of Customer Data.
Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between Practis and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) other materials provided to Customer by Practis. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Customer may not assign this Agreement, by operation of law or otherwise, without Practis’ prior written approval. Any attempted assignment in violation of the foregoing will be null and void. This Agreement is binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
These Terms of Service are controlled by Practis from its offices within California, United States of America. By accessing the Services, Customer agrees that the statutes and laws of the State of California, without regard to (i) the conflicts of laws principles thereof and (ii) the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of the Services. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. The place of arbitration will be Los Angeles, California. The language to be used in the arbitral proceedings will be English. Judgment upon the award, to be rendered by a single arbitrator, may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Customer understands that Practis uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services and Practis is not responsible for the shortcomings of any such third parties.
The failure of Practis to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service, coupled with any legally executed pricing terms and modifications, constitutes the entire agreement between Customer and Practis and govern Customer’s use of the Service, which supersedes any prior agreements between Customer and Practis.
Written notices required under these Terms of Service should be sent via email to firstname.lastname@example.org.