Terms of Service

Last modified: July 23, 2023

VALENCE BRANDS, LLC (“PRISM COMMERCE,” ‘WE” OR “US”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT EITHER ENTERS INTO A SOFTWARE AND SERVICES AGREEMENT, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH PRISM COMMERCE THAT REFERENCES THESE TERMS OF USE (THESE “TERMS OF USE” OR “AGREEMENT”) OR OTHERWISE ACCEPTS THESE TERMS OF USE ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM PRISM COMMERCE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND PRISM COMMERCE. BY ENTERING INTO A SOFTWARE AND SERVICES AGREEMENT, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH PRISM COMMERCE THAT REFERENCES THE AGREEMENT BELOW OR OTHERWISE ACCEPTING THESE TERMS OF USE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

Prism Commerce and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

1.2 Confidential Information has the meaning given to it in Section 4.1.

1.3 Customer means the person or entity that enters into a Software and Services Agreement with Prism Commerce that references this Agreement

1.4 Customer Data means all Data made available by the Customer or its Users to Prism Commerce or otherwise provided by Customer or its Users in connection with the provision of the Services.

1.5 Data means text, images, documents, materials, photos, audio, video, architectural designs and plans and all other forms of data or communication.

1.6 Documentation means any documentation for the Subscription Service generally supplied by Prism Commerce to assist its customers in the use of the Subscription Service.

1.8 Implementation Services means the configuration and implementation of the Subscription Service set forth and described on a Software and Services Agreement.

1.9 Losses has the meaning given to it in Section 9.1.

1.10 Professional Services means consulting and/or custom services to be provided by Prism Commerce. All Professional Services will be set forth and described in a Software and Services Agreement or Statement of Work.

1.11 Software and Services Agreement means each Prism Commerce provided ordering document or electronic sign up form which references this Agreement, identifies the specific Subscription Service and any Implementation Services ordered by Customer from Prism Commerce, sets forth the prices for the Subscription Service and Implementation Services and contains other applicable terms and conditions. Software and Services Agreements may be provided by Prism Commerce electronically.

1.12 Services means the Subscription Service, Implementation Services and any Professional Services provided by Prism Commerce pursuant to Section 2.1 hereof.

1.13 Prism Commerce Data means all Data made available by Prism Commerce to Customer in connection with the Customer’s use of the Services.

1.14 Subscription Service means Prism Commerce’ proprietary subscription-based online monitoring and communication software solution set forth and described in the applicable Software and Services Agreement.

1.15 Users mean individuals who have signed up and/or purchased a subscription to the Subscription Service, and for Corporate Entities, individuals who are authorized by the Customer to use the Services on behalf of Customer. Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.

1.16 Work Product means any deliverables, content, reports, analyses or documentation developed by Prism Commerce on behalf of Customer and delivered to the Customer in the performance of any Professional Services.

2. SERVICES

2.1 Services. Prism Commerce shall provide the Customer with the specific Services specified on a Software and Services Agreement, as the case may be. Any conflict between the terms and conditions set forth in this Agreement and any Software and Services Agreement shall be resolved in favor of this Agreement. The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Prism Commerce regarding future functionality or features.

2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Software and Services Agreement, Prism Commerce hereby grants to the Customer, solely during the term of the applicable Software and Services Agreement, a non-exclusive, non-transferable (except as set forth in Section 10.2) license to access and use the Subscription Service solely for the Customer’s internal business purposes. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party unless otherwise noted on the Software and Services Agreement. The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service. The Customer agrees: (a) that only authorized Users are permitted to use the Subscription Service; (b) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service and the Documentation from unauthorized use and/or access.

2.3 Affiliates. Subject to the terms of the Software and Services Agreement, the Customer may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that the Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. Any license restrictions set forth on a Software and Services Agreement shall be deemed to apply to both the Customer and its Affiliates. By way of example, if a Software and Services Agreement limits use of the Subscription Service to twenty (20) Users, then the use by the Customer and its Affiliates, when aggregated together, shall not exceed a total of twenty (20) Users.

3. FEES; PAYMENT TERMS

3.1 Fees. The Customer agrees to pay Prism Commerce for Services provided and expenses incurred on the basis and at the rates specified in each Software and Services Agreement. Customer shall pay for the Services via a valid credit or debit card to Prism Commerce with payments to be made monthly in advance. If Customer’s payment and registration information is not accurate, current and complete, and Customer does not notify Prism Commerce promptly when such information changes, Prism Commerce may suspend or terminate Customer’s use of the Services. In cases where the parties have agreed that Prism Commerce will separately invoice Customer, payment shall be due within thirty (30) days after receipt of Prism Commerce’ invoice and shall be made in US Dollars. Prism Commerce may use a third party payment service to process Customer’s payment. By submitting payment account information, Customer grants Prism Commerce the right to store and process such information with the third party payment service and agrees that Prism Commerce will not be responsible for any failures of the third party to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all Customer pre-approved reasonable travel and out-of-pocket expenses incurred by Prism Commerce in connection with any Services rendered.

3.2 Disputed Charges. If the Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, the Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) the Customer delivers a written statement to Prism Commerce on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by the Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from the Customer that are not in dispute have been paid as and when required under this Agreement.

3.3 Taxes. Fees are exclusive of taxes. The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Prism Commerce and any taxes or obligations imposed upon Prism Commerce under federal, state and local wage laws.

4. CONFIDENTIALITY

4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

5. WARRANTIES

5.1 Subscription Service Warranty. Prism Commerce warrants that during the term of any Software and Services Agreement for the Subscription Service, the Subscription Service will conform, in all material respects, with the descriptions set forth in the applicable Software and Services Agreement. Prism Commerce does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. Prism Commerce makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Prism Commerce will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Prism Commerce with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Software and Services Agreement and this Agreement.

5.2 Professional Services Warranty. Prism Commerce warrants that any Professional Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set forth in the Software and Services Agreement in all material respects. Prism Commerce further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable Software and Services Agreement. If the Services are not performed as warranted or the Work Product does not so comply, then, upon the Customer’s written request, Prism Commerce shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer. Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be. Such re-performance shall be the Customer’s exclusive remedy and Prism Commerce’ sole liability for any such non-performance. If, however, after repeated efforts, Prism Commerce is unable to remedy such defect in any Work Product, then the Customer’s sole remedy and Prism Commerce’ entire liability shall be to refund to the Customer any amounts previously paid by the Customer for the particular deficient Professional Services or Work Product.

5.3 No Other Warranty. PRISM COMMERCE DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY PRISM COMMERCE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

6. LIMITATION OF LIABILITY

6.1 Consequential Damage Exclusion. Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.

6.2 Limitation of Liability. The total cumulative liability of Prism Commerce to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the greater of (x) $100.00 and (y) the Services fees paid by Customer to Prism Commerce under the Software and Services Agreement for the Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Software and Services Agreement reflects this allocation of risk and the limitation of liability specified herein.

7. TERM

7.1 Term. This Agreement will continue in effect until there are no further Software and Services Agreements in effect between the Parties or until otherwise terminated in accordance with Section 7.2 below. The term of each Software and Services Agreement for the Subscription Service shall be set forth on the Software and Services Agreement. Prism Commerce reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Software and Services Agreement upon providing the Customer with written notice thereof (which notice may be provided by e-mail) at least 60 days prior to the then current renewal date of the Software and Services Agreement. Prism Commerce reserves the right to modify this Agreement by posting a new Agreement online and notifying Customer of such new agreement provided that such new Agreement will only be applicable (i) for any existing Software and Services Agreement only upon renewal (i.e. any renewal period that goes into effect after the date of the new agreement) and (ii) for any Software and Services Agreement entered into after the date such new Agreement goes into effect.

7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Software and Services Agreement (i) immediately in the event of a material breach of this Agreement or any such Software and Services Agreement by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of a Software and Services Agreement shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Software and Services Agreements. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Software and Services Agreement.

7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Software and Services Agreement, Prism Commerce shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services. The Customer shall pay Prism Commerce for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.

8. OWNERSHIP; USE OF DATA; OBLIGATIONS

8.1 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Prism Commerce a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer.

8.2 Subscription Service. The Customer acknowledges and agrees that as between Prism Commerce and the Customer, all right, title and interest in and to the Subscription Service (excluding any Customer Data) and including all modifications and configurations, all Prism Commerce Data and all of Prism Commerce’ proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Prism Commerce in providing the Subscription Service and all derivatives thereof are and shall remain Prism Commerce’ or its licensors’. The Prism Commerce name, all Prism Commerce logos, and the product names associated with the Subscription Service are trademarks of Prism Commerce or third parties, and no right or license is granted to use them. The Customer shall not remove any Prism Commerce trademark or logo from the Subscription Service. During the term of this Agreement, Prism Commerce grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Prism Commerce Data solely in connection with the Customer’s permitted use of the Subscription Service. Prism Commerce shall have the right to collect, use and distribute during the term of this Agreement and thereafter aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from the Customer’s use of the Subscription Service) provided, however, that Prism Commerce shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with the Customer or any of its Users.

8.3 Customer Obligations. The Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited. Without Prism Commerce’ express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service to any third-party. The Customer shall be liable for any breach of this Agreement by any of its Users. In addition to Prism Commerce’ other remedies hereunder, Prism Commerce reserves the right upon notice to the Customer to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in this Agreement. The Customer is solely responsible for all Customer Data. Prism Commerce does not guarantee the accuracy, integrity or quality of such Customer Data. Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.

8.4 Work Product. The parties agree that unless otherwise expressly set forth in a Software and Services Agreement, Customer will have a non-exclusive, non-transferable (except as set forth in Section 10.2) license to use, sublicense and distribute any Work Product developed by Prism Commerce in the performance of the Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder. Prism Commerce retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Prism Commerce in the performance of this Agreement.

8.5 Plan Downgrades. If Customer downgrades its applicable subscription plan, Customers will have thirty (30) days to remove the excess data, after which Prism Commerce may either remove such excess data itself or suspend Customer’s access to the Subscription Service. Customer hereby releases Prism Commerce from all liability resulting from such removal or suspension.

8.6 Suggestions. Customer may provide feedback, ideas and suggestions regarding the Services (collectively, “Suggestions”). If Customer provides any Suggestions, Customer agrees that: (i) such Suggestion(s) become Prism Commerce’ property and Customer is not owed any compensation in exchange; (ii) none of the Suggestion(s) contain confidential or proprietary information of any third party; (iii) Prism Commerce may use or redistribute Suggestion(s) for any purpose and in any way; (iv) there is no obligation for Prism Commerce to review or implement any Suggestion(s); and (v) Prism Commerce has no obligation to keep any Suggestions confidential.

9. INDEMNIFICATION

9.1 Prism Commerce Indemnification. Subject to Section 9.3 below, Prism Commerce will indemnify, defend and hold the Customer and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against the Customer or any of its Affiliates alleging that the use of the Services or Work Product as permitted hereunder infringes any United States copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement or applicable law, (b) use of the Services or Work Product after Prism Commerce notifies the Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services or Customer Data, (d) modifications to the Services or Work Product made other than by Prism Commerce (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Work Product with software or equipment which was not provided by Prism Commerce, to the extent that the Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Prism Commerce with the Customer’s custom requirements or specifications if and to the extent such compliance with the Customer’s custom requirements or specifications resulted in the infringement. If the Services or Work Product are held to infringe, Prism Commerce will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect the Customer against such claim without cost to the Customer; (b) to replace the Services or Work Product with non-infringing Services or Work Product; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Software and Services Agreement and refund to the Customer any prepaid unused fees paid to Prism Commerce for the infringing Services or Work Product. The rights and remedies granted the Customer under this Section 9.1 state Prism Commerce’s entire liability, and the Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.

9.2 Customer Indemnification. Subject to Section 9.3 below, the Customer shall indemnify, defend, and hold Prism Commerce and its Affiliates harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Prism Commerce or any of its Affiliates that arises out of or results from a claim (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (ii) arising out of the Customer’s breach of Sections 8.3 above or violation of any applicable law or regulations.

9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).

10. GENERAL

10.1 Entire Agreement. This Agreement, including all Software and Services Agreements, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Except as set forth in Section 7.1, only a written instrument that refers to this Agreement or the applicable Software and Services Agreement and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Software and Services Agreement. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Prism Commerce. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

10.2 Assignment. This Agreement shall be binding upon and for the benefit of Prism Commerce, the Customer and their permitted successors and assigns. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement and all Software and Services Agreements as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Prism Commerce may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Prism Commerce shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflict of law provisions. The Parties agree that any action at law or in equity arising out of or relating to this Agreement or any Services shall be filed only in the state or federal courts of California and each Party hereby consents and submits exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Nothing in this Agreement shall prevent Prism Commerce or Customer from seeking injunctive relief in a court of competent jurisdiction. CUSTOMER AND PRISM COMMERCE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

10.4 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

10.5 Relationship of the Parties. Prism Commerce and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

10.6 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies, curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

10.7 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) by email upon confirmation that the electronic mail was received by the recipient and (iv) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Software and Services Agreement. Either Party may change its address by giving written notice of such change to the other Party.

10.8 Modifications to Subscription Service. Prism Commerce may make replacements and modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any material functionality or features of the Subscription Service.

10.9 Publicity. The Customer hereby grants Prism Commerce a non-exclusive license to list Customer’s name and display the Customer’s logo in the customer section of Prism Commerce’s website and to use Customer’s name and logo in Prism Commerce’s customer lists but only to the extent that other customers of Prism Commerce are also listed on such list provided that Customer may revoke Prism Commerce’s use of its name and logo upon written notice to Prism Commerce. Any other use by Prism Commerce of the Customer’s name, logo or trademark requires the Customer’s prior written consent. Customer also agrees to receive emails, phone calls, or other communications from Prism Commerce regarding the Services or about Customer’s use of our Services, and Customer may also receive marketing materials from us. Customer may opt out of receiving any marketing communications from Prism Commerce, by following the unsubscribe link in the applicable correspondence.

10.10 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

10.11 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.