Terms of Service
Welcome to Prism! The following Terms of Service (the “Terms”) describe the terms and conditions on which Prism Skylabs, Inc., (“Prism” or “We”) offers you (“You” or “Customer”) access to the Services, defined below. Capitalized terms used in these Terms have the meanings under “Definitions” or in the text of these Terms.
We may amend the Terms at any time. If We modify these Terms We will post the modification at www.prism.com/terms and/or otherwise provide You with notice of the modification. Your continued use of the Services after We amend these Terms means that You consent to the amendments. If You disagree with the amendments You must immediately stop accessing or using the Services. You agree that You will periodically check www.prism.com/terms for amendments to these Terms and read any messages We might send You to inform You of any amendments.
“Customer Data” means all data and information, including, but not limited to, video, still images, visualizations, analytic data and textual content, stored by Prism and generated by Prism from the Customer-Provided Data, in connection with the provision of the Services.
“Customer-Provided Data” means all data and information provided or made available by You to Prism including, but not limited to, video or images from video or security cameras, point-of-sale data, and related technology.
“Intellectual Property Rights” means all rights of a person or business entity in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
“Prism Software” means Prism’s local/edge software, in executable form, and related documentation, if applicable, used by Prism in connection with the performance of the Services or made available by Prism to You.
“Services” refers collectively to the Prism Software, cloud application at app.prism.com, any available mobile apps, and any other services Prism makes available to You pursuant to these Terms relating to the access and processing of Customer-Provided Data, and the generation and storage of, and access to Customer Data, available and more fully described on the Prism website at www.prism.com (the “Site,”), as such description may be revised from time to time.
2. Our Offering.
In order to access and use the Services You may register to create an account via the Site (“Prism Account”), or create an account via downloaded mobile app, or otherwise enter into an agreement with Prism to generate a Prism Account. You are responsible for any activities or actions under Your Prism Account, whether or not You have authorized such activities or actions. You will immediately notify Prism of any unauthorized use of Your Prism Account. Notwithstanding the foregoing, You may authorize a third party to create and manage Your Prism Account subject to Prism’s prior approval.
Prism grants to You a royalty-free, nonexclusive, nontransferable, revocable right to use the Services in connection with Your Prism Account (without any right to sublicense) for Your internal business purposes, subject to these Terms. Solely upon prior written approval from Prism in its sole discretion, You are authorized to give access to Your Prism Account to a parent entity, subsidiaries, affiliated entities, or third parties (each a “Third Party Viewer”) so that they may access the Prism Services for the purposes of viewing your Customer Data. Any such approved access is subject to an agreement between You and the Third Party Viewer, and there is no agreement between Prism and the Third Party Viewer. If You decide to provide access to a Third Party Viewer, and Prism grants approval for such access in writing, You are responsible for providing access to the Third Party Viewer. Prism will have no liability to You or any Third Party Viewer arising from or relating to any such access.
2.3 Reservation of Rights.
Prism reserves all rights to the Services not otherwise expressly granted in this Section 2.
Prism has implemented commercially reasonable technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, Prism cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Data for improper purposes.
Certain use of Prism Services are available for a fee. Those fees shall be paid as described by the Site or separate agreement between You and Prism when you first establish your Prism Account and for all subsequently added Services. Any fees paid for Services are non-refundable. If you choose to cancel your account with Prism Skylabs, you will continue to have access to your account for the entire remaining period paid in advance, as applicable. If Prism has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Prism. You shall reimburse Prism for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If you have any questions related to payments, please contact us here.
3. Customer’s Obligations.
3.1 Representations of Customer.
You represent that
a. You have the right, authority, and capacity to agree to and abide by these Terms.
b. You are at least 18 years old.
c. You agree not to disclose Your Prism Account password to anyone.
d. You have all rights necessary, including Intellectual Property Rights, to grant Prism access to the Customer-Provided Data and the right to use such Customer-Provided Data in order to provide the Services to You.
e. You have complied with and will continue to comply with all applicable laws and regulations, including, but not limited to, applicable public notification requirements relating to Your use of cameras, including, but not limited to, video surveillance and security cameras and related technology from which Customer-Provided Data is obtained.
3.2 License to Prism.
You hereby grant to Prism a worldwide, non-exclusive, royalty-free license to use, reproduce, electronically distribute, transmit, display, store, archive, analyze (and create derivative works based upon the Customer-Provided Data in the context of such analysis) and index the Customer Data in order to provide the Services to You and to authorize third parties to do the same.
3.3 Customer Obligations/Acknowledgements.
(a) General. You agree:
1. To be bound by any additional rules or policies published with respect to any application, or forum within the Services.
2. That in order to use the Services You must comply with these Terms.
3. Not to copy, redistribute, publish or otherwise exploit material from the Services, except as expressly permitted in these Terms, without the express prior written permission of Prism.
4. That all goodwill that arises in connection with Your use of the Services inures exclusively to Prism, and You agree not to challenge Prism’s ownership or control of any Prism trademarks and trade names, nor use or adopt any trademarks or trade names that might be confusingly similar to such trademarks.
5. That We may suspend Your and authorized users’ use and access to the Services in the event You or any of Your authorized users violate any of these Terms, until such breach is cured.
6. That We may delete Your Prism Account if We believe, in our sole discretion, that it is being misused in any way. We do not have to provide You with any reason for such deletion, and if We delete Your Prism Account as provided in these Terms, You will lose all content contained in such Prism Account (including Customer Data that may previously have been available to You, whether those items were provided to You gratuitously, or due to a payment of cash for the performance of Services (and in such event, We will have no obligation to make any refund to You.)
7. That the Services may contain links to other websites, and/or may be displayed within another website. Prism is not responsible for the content, accuracy or opinions expressed in such websites, and Prism does not investigate, monitor, or check those websites for accuracy or completeness. Neither the inclusion of any linked website on the Services, nor the inclusion of any component of the Services on a third party’s website or within a third party’s system implies approval or endorsement of that website by Prism. If You decide to access the Services on these third-party websites, You do so at Your own risk.
(b) Restrictions on Use of Services or Prism Software. You agree that You will not, and will not permit anyone else to: (i) use the Services or Prism Software except as permitted in Section 2.2; (ii) modify or create any derivative work of any part of the Services or Prism Software; (iii) permit any parent, subsidiaries, affiliated entities or third parties to use the Services or Prism Software except as set forth in Section 2.2 of these Terms; (iv) disassemble, decompile, or reverse engineer the Services or Prism Software or any feature thereof or otherwise attempt to gain access to the source code to the software underlying the Services (or the underlying ideas, algorithms, structure or organization of the object code used in the Services or Prism Software), or the Prism Software, except to the extent expressly permitted by applicable law; (v) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the Services or Prism Software or any copy thereof, in whole or in part; or (vi) use the Services or Prism Software for third-party training, commercial time-sharing or service bureau use.
(c) Nonexclusivity. You acknowledge that the rights granted to You under these Terms are nonexclusive, and that nothing in these Terms will be interpreted or construed to prohibit or in any way restrict Prism’s right to (a) license, sell or otherwise make available the Prism Software or Services to anyone else; (b) perform any services for anyone else; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
(d) Confidentiality. You acknowledge that the Services and Prism Software contain valuable trade secrets and confidential information owned by Prism, including but not limited to the development status of the Services and Prism Software, the functionality of the Services and Prism Software, the appearance, content and flow of the Services and Prism Software’s user interface, and the content of the Services and Prism Software’s documentation. During the period that these Terms are in effect and at all times after termination or expiration, You and Your employees and agents will maintain the confidentiality of this information, including information related to Your evaluation and characterization of the Services and Prism Software (including Feedback (as defined below)), and will not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by these Terms. You agree that You will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Prism’s confidential information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under these Terms to have any such information. Such measures will include, but not be limited to, the highest degree of care that You utilize to protect Your own confidential information of a similar nature, which will be no less than reasonable care. You will only disclose confidential information of Prism to Your employees on a need to know basis and only if such employees have executed written non-disclosure or confidentiality agreements that are at least as restrictive as Your obligations under this Section 3.3(d). You will not disclose any such information concerning the Services and Prism Software to anyone who is not Your employee without Prism’s prior written consent. You agree that You will take appropriate action by instruction, agreement or otherwise with Your employees to satisfy Your obligations under these Terms regarding the use, protection and security of Prism’s confidential information. You agree to immediately notify Prism of the unauthorized disclosure or use of the Services and Prism Software or any confidential information of Prism and to assist Prism in remedying such unauthorized use or disclosure. You understand and agree that money damages would not be a sufficient remedy for any breach of Your obligations under this Section 3.3(d) by You, Your employees or agents. Should such a breach occur or threaten to occur, Prism will be entitled to seek equitable relief, in addition to any other rights or remedies provided by law.
(e) Equipment, Services and Facilities. You are solely responsible for providing, installing and maintaining at Your own expense all equipment, facilities and services necessary to enable Prism to provide the Services, including, without limitation, all computer hardware and software, network system, communication service and Internet access.
(f) Ownership of Services. You agree that Prism owns all rights, title and interest, including but not limited to copyright, patent, trade secret, and all other Intellectual Property Rights, in all aspects of the Services and Prism Software, and any changes, modifications or corrections made thereto by Prism. No title to or ownership of the Services, or the Prism Software, or any Intellectual Property Rights associated therewith is transferred to You, any authorized user or any third party under these Terms.
(g) Software License. In order to access and use the Services, You may need to download and install the Prism Software onto Your cameras or related technology and equipment. Subject to Your compliance with these Terms, Prism grants to You a nonexclusive license to use such Prism Software only for the purpose of accessing and using the Services. You have no right to transfer, sublicense or otherwise distribute the Prism Software to any third party. Except as expressly authorized in these Terms, You will not copy the Prism Software other than as necessary to access and use the Services. You will not modify the Prism Software, in whole or in part. You will not distribute the Prism Software or create derivative works based on the Prism Software. You will not lease, lend or rent the Prism Software, use the Prism Software to provide service bureau, time sharing, rental, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the Prism Software or Services available to third parties. You acknowledge that the Prism Software constitutes and contains trade secrets of Prism, and, in order to protect such trade secrets and other interests that Prism may have in the Prism Software, You agree not to disassemble, decompile or reverse engineer the Prism Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Your rights in the Prism Software are limited to those expressly granted in these Terms. We reserve all rights and licenses in and to the Prism Software not expressly granted to You under these Terms.
(h) Responsibility for Customer-Provided Data. You agree that you are solely responsible for the Customer-Provided Data and that it does not and will not contain any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable or any information or content that You do not have a right to make available. You agree that You are solely responsible for maintaining the privacy of any individuals who appear in Your Customer-Provided Data, specifically as it relates to any regional or local laws and/or guidelines as referenced in Section 3.1(d) herein. You agree that Prism has no responsibility to any such individuals for any use You may make or may intentionally or inadvertently allow others to make of the Customer-Provided Data or Customer Data and other information provided to You via the Services. You represent and warrant that the Customer-Provided Data does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. You understand and agree that any loss or damage of any kind that occurs as a result of the content of any Customer-Provided Data is solely Your responsibility.
4. Rights/Obligations of Prism.
4.1 Right of Prism to Use Customer’s Evaluation and Data.
As part of Your use of the Services and Prism Software in accordance with these Terms, You agree that if You provide Prism with any suggestions and ideas for modifications or improvements to the Services, feedback, error identifications or other information related to the Services or Prism Software or Your use thereof (“Feedback”), You hereby assign and agree to assign to Prism all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and agree to assist Prism in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback. Consequently, Prism has the right to use any Feedback in any way and for any purpose without any requiring Your permission or compensation in exchange for such use.
4.2 Identification of Customer.
You hereby grant to Prism a non-exclusive, non-transferable license, during the term, to use all trademarks, service marks, logos or trade names used by You to identify You and/or Your products and services (“Customer Mark”). Any use of a Customer Mark by Prism must correctly attribute ownership of such mark to You and must be in accordance with applicable law and Your then-current trademark usage guidelines. Prism acknowledges and agrees that You own the Customer Mark and that any and all goodwill and other proprietary rights that are created by or that result from Prism’s use of a Customer Mark hereunder inure solely to Your benefit. Prism will at no time contest or aid in contesting the validity or ownership of any Customer Mark or take any action in derogation of Your rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any Customer Mark.
Except for the license granted in these Terms, Prism acknowledges that You retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Prism has no obligation to review, share, distribute, or reference any Customer Data except as is authorized by Customer and required for provision of the Services or as may be required by law. Prism is not responsible for any public display or misuse of Customer Data, except in the case of gross negligence or intentional misconduct by Prism or its employees. Notwithstanding the foregoing, You agree that Prism may analyze Customer Data both on an individual basis and in the aggregate that Prism observes in its generation of Customer Data and You agree that Prism owns any aggregate statistics or other “meta data”, such as overall patterns or demographic reports, which do not describe or identify any individual person, resulting from such generation of Customer Data.
5. Term and Termination.
These Terms remain in effect until terminated.
5.2 Termination by Prism.
Prism may terminate these Terms at any time by providing five (5) business days’ prior written notice to You stating the effective date of the termination. Prism may terminate these Terms immediately and automatically without notice from Prism if, in Prism’s sole discretion, You fail to comply with any term or provision of these Terms.
5.3 Termination by Customer.
You may terminate these Terms by providing prior written or email notice to Prism stating the effective date of the termination.
5.4 Effect of Termination.
As soon as practicable following any termination of these Terms, but more than ten (10) business days after), You agree to disable or otherwise remove access to the Services, including any Prism Software installed or activated systems, widgets or other user interface elements of the Services, and all Services-related materials obtained from the Services. Upon request by Prism, You will certify in writing and provide to Prism any documentation, substantiation or releases necessary to verify that You have complied with this Section 5.4. Sections 1, 2.2, 2.3, 2.5, , 3.1, 3.2, 3.3(a)(4), 3.3(a)(6), 3.3(d), 3.3(f), 3.3(h) 4.1, 4.3, 5.4, 6, 7 and 8 will survive termination of these Terms. Upon termination Prism will delete Your Prism Account and Your Customer Data and You will no longer have access to such Customer Data and related information made available to You via the Services.
6. Disclaimer of Warranties and Limitations.
6.1 Acknowledgment by Customer; Disclaimer of Other Warranties.
You and Prism agree that the Services and Prism Software are provided “AS IS” and on an “AS AVAILABLE” basis, and that Prism makes no warranty as to the Services and Prism Software. You acknowledge and agree that the Services may contain errors, bugs, design flaws or other problems and Prism will make best efforts to resolve such issues as part of ongoing development and testing of the Services. PRISM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE RELATED TO THE SERVICES OR PRISM SOFTWARE, THE USE OR ANY INABILITY TO USE THE SERVICES OR PRISM SOFTWARE, AND THE RESULTS OF THE USE OF THE SERVICES OR PRISM SOFTWARE.
6.2 Limitation of Liability.
IN NO EVENT WILL PRISM OR ITS DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SERVICES AND PRISM SOFTWARE, EVEN IF PRISM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PRISM WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST YOU BY ANY OTHER PARTY. YOU AGREE THAT YOU WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR CUSTOMER DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SERVICES. UNDER NO CIRCUMSTANCES WILL PRISM BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR PRISM ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS TO OR TRANSMISSION OF THE SERVICES OR PRISM SOFTWARE ARE TO TERMINATE THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRISM ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR OR ANY THIRD PARTY’S ACCESS TO AND USE OF THE SERVICES OR PRISM SOFTWARE; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF THE SERVICES OR PRISM SOFTWARE; OR (III) DAMAGE CAUSED BY THE POSTING, TRANSMISSION OR STORAGE OF CUSTOMER DATA. IN NO EVENT WILL PRISM, ITS DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO YOU OR YOUR AUTHORIZED USERS FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING ONE HUNDRED DOLLARS ($100).
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PRISM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7.1 Indemnity by Customer.
You will defend, indemnify and hold harmless Prism and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Services or Prism Software; (ii) Your violation of these Terms; (iii) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) Your violation of any law, rule or regulation of the United States or any other country; (v) Your Customer-Provided Data; or (vi) any other party’s access and use of the Services via Your Prism Account or as set forth in Section 2.2 of these Terms.
7.2 Obligations of Prism to Obtain Indemnity.
The foregoing indemnities are contingent on Prism: (i) promptly notifying You of any claim; (ii) permitting You to control and manage the defense of any claim (and any settlement); and (iii) cooperating with the You in the defense of any claim (and any settlement). All costs and expenses incurred by You in providing the foregoing indemnity will be paid by You. Prism may join in defense with counsel of its choice at its own expense. You will not settle or resolve any such claim in a manner that imposes any liability or obligation on Prism without the advance written approval of Prism, which must not be unreasonably withheld or delayed.
8.1 No Assignment.
You may not delegate, assign or transfer these Terms or any of Your rights and obligations under these Terms without Prism’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Prism may freely assign these Terms without Your consent.
8.2 Amendments and Waivers.
Any term of these Terms may be amended or waived only with the written consent of the parties. Any amendment or waiver affected in accordance with this Section 8.2 will be binding upon the parties and their respective successors and assigns. Any waiver by either party of any condition, term or provision of these Terms will not be construed as a waiver of any other condition, term or provision. Neither the course of conduct between You and Prism nor trade practice will act to modify these Terms at any time without any notice to You or Prism.
Notice to the parties will be in writing and will be sent (i) to Prism at the following email@example.com or (ii) to You to Your address or email address as provided by You when You registered with Prism.
8.4 U.S. Government Restricted Rights.
If the Services and Prism Software are being provided to the U.S. Government, You acknowledge that the Services and Prism Software include commercial computer software and documentation developed exclusively at private expense. If the Services and Prism Software are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software and applicable documentation will be only those specified in these Terms.
8.5 Export Law Assurances.
You understand that the Services and Prism Software are subject to export control laws and regulations. YOU MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT ANY ELEMENT OF THE SERVICES OR PRISM SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SERVICES OR PRISM SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (i) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (ii) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. YOU HEREBY AGREE TO THE FOREGOING AND REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
8.6 Independent Contractor.
Neither party is an agent of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
8.7 Governing Law/Resolution Of Disputes/Waiver Of Injunctive Relief
(a) These Terms are governed by and construed in accordance with the internal laws of the United States and the State of California without regard to conflict of laws provisions. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), You agree not to commence or prosecute any action other than in the state court of San Francisco County, California, and federal court located in San Francisco County, California, and You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state court located in San Francisco County, California, and federal court located in San Francisco County, California.
(b) Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms (“Dispute”), You and Prism agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send Your notice to Prism, Inc. 799 Market Street, 8th Floor, San Francisco, CA 94103, ATTENTION: LEGAL DEPARTMENT.
(c) Binding Arbitration. If You and Prism are unable to resolve a Dispute through informal negotiations, either You or Prism may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and Your share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Prism will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in these Terms, You and Prism may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
(d) Restrictions. You and Prism agree that any arbitration will be limited to the Dispute between Prism and You individually. To the full extent permitted by law, (1) no arbitration will be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
(e) Exceptions to Informal Negotiations and Arbitration. You and Prism agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of Your or Prism’s Intellectual Property Rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
The failure of Prism to require or enforce strict performance by You of any provision of these Terms or to exercise any right under them will not be construed as a waiver or relinquishment of Prism’s right to assert or rely upon any such provision or right in that or any other instance.
8.9 US Based.
Prism operates and controls the Services from its offices in the United States. We make no representation that the Services are appropriate or available in other locations. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
8.10 No Third party Beneficiaries.
These Terms are between You and Prism. No third party has any rights to force Prism to enforce any rights it may have against any You or any other third party.
You hereby waive any and all defenses You may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.