AskGenius Terms and Conditions
ASKGENIUS PLATFORM AGREEMENT
This AskGenius Platform Agreement is a legal, binding contract between Customer and Prenger Solutions Group, LLC, a Nebraska limited liability company (“PSG”) (each a “Party”; and collectively, the “Parties”). “Customer” means the individual that is entering into this Agreement and the business entity on whose behalf such individual is accessing and using the Platform.
PSG PROVIDES CUSTOMER AND AUTHORIZED USERS ACCESS TO ITS WEB-BASED PLATFORM KNOWN AS “ASKGENIUS” (“PLATFORM”) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER AND ALL AUTHORIZED USERS ACCEPT AND COMPLY WITH ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY CLICKING “ACCEPT”, OR BY ACCESSING OR USING THE PLATFORM, CUSTOMER: (I) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND CONDITIONS; (II) REPRESENTS AND WARRANTS THAT IT, AS AN INDIVIDUAL, IS 19 YEARS OF AGE OR OLDER; (III) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND CUSTOMER (BOTH AS AN INDIVIDUAL THE BUSINESS ENTITY ON WHOSE BEHALF SUCH INDIVIDUAL IS ACCESSING AND USING THE PLATFORM) TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT; AND (IV) REPRESENTS AND WARRANTS THAT IT WILL CAUSE ALL AUTHORIZED USERS TO COMPLY WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, RESTRICTIONS AND AGREEMENTS SET FORTH IN THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, (A) PSG MAY IMMEDIATELY SUSPEND OR TERMINATE CUSTOMER’S AND AUTHORIZED USERS’ ACCESS TO THE PLATFORM, (B) CUSTOMER MUST NOT ACCESS OR USE THE PLATFORM, AND (C) CUSTOMER MUST NOT PERMIT ANY AUTHORIZED USER TO ACCESS OR USE THE PLATFORM. “AUTHORIZED USERS” MEANS INDIVIDUALS OR ENTITIES WHO ARE AUTHORIZED BY CUSTOMER TO USE THE PLATFORM UNDER CUSTOMER’S ACCOUNT. CUSTOMER MAY PROVIDE AUTHORIZED USERS ACCESS TO THE PLATFORM IF, AND ONLY IF, CUSTOMER CAUSES ALL AUTHORIZED USERS TO AGREE IN WRITING TO COMPLY AT ALL TIMES WITH ALL REPRESENTATIONS, WARRANTIES, COVENANTS, OBLIGATIONS AND RESTRICTIONS IN THIS AGREEMENT AND PSG APPROVES OF SUCH AUTHORIZED USERS.
1. STRUCTURE OF AGREEMENT. “Order Form” means the PSG order form, statement of work, or other other similar document that: (i) references this AskGenius Platform Agreement; (ii) is entered into by and between PSG and Customer; and (iii) sets forth the Fees. Each fully-executed Order Form shall be deemed to incorporate by reference all of the terms and conditions of this AskGenius Platform Agreement and shall constitute a separate and binding contract between PSG and Customer. In the event there are any conflicts or any inconsistencies between the terms and conditions of any Order Form and the terms and conditions of this AskGenius Platform Agreement, the terms and conditions of the Order Form shall govern. “Agreement” means this AskGenius Platform Agreement together with the applicable Order Form into which this AskGenius Platform Agreement is incorporated.
2. SUBSCRIPTION. Subject to the terms and conditions of this Agreement, Customer has a limited, non-exclusive, non-transferrable, non-assignable, non-sublicensable, limited, revocable right to access and use the Platform during the term of the applicable Order Form.
3. FEES AND PAYMENT TERMS. Customer agrees to pay PSG fees in the amounts and on the terms described in the applicable Order Form (“Fees”). Unless otherwise agreed by the Parties in writing, all Fees are due and payable within thirty (30) days of the date of invoice. PSG has the right to suspend Customer’s access to the Platform should Customer default in the payment of Fees, or any part thereof. All Fees are exclusive of any customs, tariffs, duties, sales, use GST or value-added taxes, or similar governmental charges. Customer shall pay all such customs, tariffs, duties, sales, use GST or value-added taxes, or similar governmental charges.
5. CUSTOMER RESPONSIBILITIES; USE RESTRICTIONS. Customer will: (i) prevent all unauthorized access to or use of the Platform, and notify PSG immediately of any such unauthorized access or use; (ii) fully cooperate with any reasonable investigation by PSG of any outage, security problem or suspected breach of this Agreement; and (iii) comply with all PSG instructions relating to Customer’s or Authorized Users’ access to or use of the Platform. PSG will have the right to monitor the use of the Platform for purposes of measuring and reporting on usage, and Customer will respond promptly and truthfully to any reasonable inquiries from PSG to assess the scope of Customer’s and Authorized Users’ use of the Platform. “PSG Property” means any and all of the following: the Platform, Licensed Data (defined below), any documentation of PSG and any tangible or intangible property of PSG, including, without limitation, the underlying software of the Platform, together with all copies, reproductions, enhancements, modifications, edits, adaptions and derivative works thereof, and all enhancements, modifications, edits, additions, adaptions and derivative works of Customer Data made by or on behalf of PSG. Customer and Authorized Users will not use PSG Property except as expressly permitted in this Agreement. Any use or disclosure of PSG Property not expressly authorized in this Agreement is strictly prohibited. Without limiting the generality of the foregoing, Customer and Authorized Users will not at any time, directly or indirectly, and will not permit any third party to: (a) publish, enhance, or display any compilation or directory based upon information derived from PSG Property; (b) use, disclose or access PSG Property in violation of applicable Laws; (c) copy, reproduce, modify, or create derivative works based upon PSG Property; (d) sell, resell, license, lease, transfer, redistribute, assign or otherwise commercially exploit or make PSG Property available to any third party; (e) send, store, submit or upload libelous, unlawful or tortious material or malicious or harmful code on or to the Platform; (f) send, store, submit or upload malicious or harmful code on or to the Platform; (g) save to the extent strictly necessary for the operation of the Platform, send, store, submit or upload any personal information on or to the Platform; (h) interfere with or disrupt the integrity or performance of the cloud environment where the Platform is deployed; (i) attempt to circumvent security restrictions or protocols for the cloud environment where the Platform is deployed; (j) disclose the results of any benchmarking test; (k) remove or modify any proprietary markings or notices on PSG Property; or (l) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of PSG Property or methods used to compile Licensed Data. Customer will at all times use all legal, organizational, physical, administrative, and technical measures, and security procedures necessary to safeguard and ensure the security of PSG Property and to protect PSG Property from unauthorized access, disclosure, duplication, use, modification, or loss. Customer must house PSG Property on the internet behind firewalls. Customer must cause all copies of PSG Property in its possession or control to be encrypted while at rest and while in transit. Customer must not, directly or indirectly via a service provider, store or host PSG Property internationally. If Customer (or its data storage services provider) is subject to a data security breach and such security breach affects PSG Property, Customer will immediately take all steps to respond to, mitigate and remedy such breach and will notify PSG in writing immediately (but not more than twenty-four (24) hours) following discovery of such data security breach. Customer will be responsible for all costs of recovering PSG Property if a security breach affects PSG Property and all costs, expenses, fines, fees or penalties resulting from a security breach that affects PSG Property.
6. LICENSED DATA. “Licensed Data” means the data, metadata, scheme, information, documentation, reports and content obtained or downloaded from, or made available by, the Platform. Subject to the terms and conditions set forth in this Agreement, PSG grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable right and license to internally reproduce and distribute Licensed Data solely for its own internal business purposes and for no other purpose. The rights and licenses granted to Customer in this section are conditioned upon Customer’s and all Authorized Users’ compliance with all obligations in Section 5.
7. INTELLECTUAL PROPERTY. Notwithstanding anything to the contrary herein or elsewhere, Customer acknowledges and agrees that, and will cause all Authorized Users to acknowledge and agree that: (i) PSG and its licensors and service providers are the owners of all right, title and interest in and to all PSG Property, and all copyrights, trade secrets, patents, trademarks and other intellectual property rights therein; (ii) PSG Property is protected by United States and international copyrights, patents, trademarks, service marks, trade secrets or other proprietary and intellectual property rights and laws, as applicable; and (iii) Customer and Authorized Users claim no proprietary rights in any PSG Property. Customer hereby irrevocably assigns to PSG, and Customer will cause all Authorized Users to irrevocably assign to PSG, all right, title and interest, including all intellectual property rights, in and to PSG Property. All pending and/or registered trademarks and service marks, and other graphics, logos, and trade names used by PSG in connection with the Platform, and any other products or services offered by PSG are the trademarks of PSG or its licensors or service providers. If Customer provides suggestions, comments, ideas or recommendations, requests for enhancements, additional features or functionality, or other feedback to PSG, (collectively “Feedback”) PSG owns all right, title, and interest in and to the Feedback and all intellectual property rights therein, and Customer hereby assigns all such right, title and interest therein to PSG. Customer will execute any documents PSG reasonably requests for use in obtaining or enforcing such rights and protections set forth in this Section 7.
8. CONFIDENTIALITY. From time to time before or during the term of the applicable Order Form, either Party (as the “Discloser”) may disclose or make available to the other Party (as the “Recipient”), non-public, proprietary, or confidential information of Discloser (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 8; (ii) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Recipient’s possession prior to Discloser’s disclosure hereunder; or (iv) was or is independently developed by Recipient without using any Confidential Information of the Discloser. Notwithstanding the foregoing, PSG Property shall always be deemed PSG’s Confidential Information. The Recipient shall: (1) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care; (2) not use the Discloser’s Confidential Information, or authorize it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (3) not disclose Discloser’s Confidential Information to any person or entity, except to the Recipient’s Group who need to know the Discloser’s Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who have agreed to confidentiality terms at least as restrictive as those set forth in this Section 8. If the Recipient is required by applicable law or legal process to disclose any Confidential Information of the Discloser, Recipient may disclose such portion of the Confidential Information required to be disclosed by applicable law or legal process if Recipient, prior to making such disclosure, uses reasonable efforts to notify Discloser of such requirements to afford Discloser the opportunity to seek, at Discloser’s sole cost and expense, a protective order or other remedy. “Recipient’s Group” means the Recipient’s employees, officers, directors, agents, independent contractors, subcontractors, attorneys, accountants, and financial advisors. Recipient will cause all members of its Recipient’s Group to comply with Recipient’s obligations under this Section 8. Recipient shall be responsible and liable for any and all breaches of this Section 8 by, or caused by, its Recipient’s Group.
9. CANCELLATION, TERM; SUSPENSION OF ACCESS. Unless otherwise set forth in the applicable Order Form, the term of this Agreement shall commence upon the effective date of the applicable Order Form and continue for 1 year thereafter, unless and until earlier terminated in accordance with this this Agreement. Unless otherwise set forth in the applicable Order Form, upon expiration of the initial 1 year term, this Agreement will automatically renew for additional successive 1 year terms, unless either Party provides the other Party written notice of its intent to not renew this Agreement at least 30 days prior to the end of the then-current term, and unless and until earlier terminated in accordance with this Agreement. Either Party may terminate this Agreement by delivery of written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within 3 days of receipt of written notice of such breach. Immediately upon PSG’s request or termination or expiration of this Agreement, Customer shall, and shall cause all Authorized Users to irretrievably and securely delete all PSG Property in its possession or control. The terms of the following Sections will survive any termination or expiration of this Agreement: 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14 and 15. If Customer is not required to pay Fees to access or use the Platform, PSG may suspend or terminate Customer’s and Authorized Users’ access to the Platform at any time with or without notice (and without liability). PSG may suspend access to the Platform at any time with or without notice (and without liability) if: (i) PSG reasonably believes that PSG Property is being used in violation of this Agreement; (ii) Customer does not cooperate with reasonable investigation by PSG of any suspected violation of this Agreement; (iii) PSG Property or Customer Data are accessed or manipulated by a third party without Customer consent; (iv) PSG is required by law, or a regulatory or government body to suspend access to PSG Property; (v) any undisputed invoiced amounts remain unpaid by Customer for more than three (3) calendar days past the due date; or (vi) there is another event for which PSG reasonably believes that the suspension of access to the Platform is necessary to protect the cloud environment in which Customer’s instance of the Platform is deployed.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL PSG BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY CUSTOMER OR ANY AUTHORIZED USER OR THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR NEGLIGENCE, EVEN IF PSG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY OF THE LIMITED REMEDIES OF THIS AGREEMENT FAIL TO FULFILL THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL PSG’S AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT OR PSG PROPERTY, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER IN AN ACTION IN CONTRACT, TORT OR NEGLIGENCE, EXCEED FEES PAID BY CUSTOMER TO PSG UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM OR $5,000, WHICHEVER IS GREATER.
11. NO PSG WARRANTY. PSG RESERVES THE RIGHT TO CHANGE, ADD OR REMOVE FUNCTIONALITIES OF THE PLATFORM FROM TIME TO TIME AT PSG’S SOLE DISCRETION. MALFUNCTION OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDERS OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET MAY MAKE PSG PROPERTY TEMPORARILY OR PERMANENTLY UNAVAILABLE. PSG PROPERTY ARE PROVIDED TO CUSTOMER AND AUTHORIZED USERS “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. PSG GIVES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, RELATED TO PSG PROPERTY. PSG HEREBY DISCLAIMS, AND CUSTOMER AND AUTHORIZED USERS EXPRESSLY WAIVE, ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR AND WITHOUT LIMITING THE FOREGOING, PSG MAKES NO REPRESENTATIONS OR WARRANTIES THAT (A) THE PLATFORM WILL MEET CUSTOMER’S OR AUTHORIZED USERS’ REQUIREMENTS, (B) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, PLATFORMS, DELIVERABLES, INFORMATION OR OTHER MATERIAL RECEIVED OR OBTAINED BY CUSTOMER OR AUTHORIZED USERS THROUGH THE PLATFORM WILL MEET CUSTOMER’S OR AUTHORIZED USERS’ EXPECTATIONS, OR (E) ANY ERRORS IN THE SOFTWARE USED TO OPERATE THE PLATFORM WILL BE CORRECTED. ALL PSG PROPERTY, INCLUDING WITHOUT LIMITATION ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM, ARE ACCESSED AT CUSTOMER’S AND AUTHORIZED USERS’ OWN DISCRETION AND RISK, AND CUSTOMER AND AUTHORIZED USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS RESPECTIVE COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PSG IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PSG’S DISTRIBUTION LISTS MAY CHANGE FROM TIME TO TIME, AND PSG DOES NOT GUARANTEE DISTRIBUTION OF CUSTOMER DATA TO ANY SPECIFIC DISTRIBUTION POINT. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THIS AGREEMENT IT HAS NOT RELIED AND IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY PSG OR ANY OF ITS AFFILIATES OR REPRESENTATIVES) AND THAT IT WILL NOT HAVE ANY RIGHT OR REMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. CUSTOMER RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
12. INDEMNIFICATION. Customer agrees to indemnify, defend and hold PSG and its respective affiliates, distributors, resellers, licensors, service providers, contractors, customers, members, managers, employees, agents, representatives, successors and permitted assigns, harmless from and against any and all claims, suits, actions, cases of action, demands, proceedings, litigation, investigations, subpoenas, damages, settlements, costs, liabilities, losses, fines, fees, awards, penalties, and expenses of any nature whatsoever (including, but not limited to, reasonable legal fees) (collectively, “Losses”) arising out of, based upon, relating to or resulting from: (i) the use or access of, or reliance on, PSG Property, or any part thereof, by Customer or any Authorized User or other third party whose access to or reliance on such PSG Property is made available, directly or indirectly, by, through or because of Customer; (ii) Customer Data or PSG’s or Customer’s disclosure, use, receipt, retrieval or collection thereof; (iii) any negligent or willful act or omission by Customer or any Authorized User; (iv) any actual or alleged breach of any representation, warranty, covenant or obligation in this Agreement by Customer or any Authorized User; or (v) use of the Platform by Customer or any Authorized User.
13. FORCE MAJEURE. In no event will PSG be liable to Customer or any Authorized User, or be deemed to have breached this Agreement or any other agreement between the Parties, for any failure or delay in performing its obligations under this Agreement or such other agreement, if and to the extent such failure or delay is caused by any circumstances beyond PSG’s reasonable control, including but not limited to failures of the internet, computer systems or communications networks, pandemics, epidemics, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. This Agreement is governed by and construed in accordance with the internal laws of the State of Nebraska without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Nebraska. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts in Omaha, Nebraska and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Notwithstanding the foregoing, PSG may seek injunctive relief in any court of competent jurisdiction. Each Party hereby irrevocably waives its right to a trial by jury in connection with any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder.
15. ENTIRE AGREEMENT; SEVERABILITY; SUCCESSORS AND ASSIGNS; OTHER. This Agreement, together with any other documents incorporated herein by reference and all agreements between the Parties regarding payment of Fees by Customer, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, and will bind and inure to the benefit of the Parties and their successors and permitted assigns. Customer may not assign, delegate or otherwise transfer this Agreement or any rights or obligations hereunder. Any assignment in violation of this Agreement is void. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Except for indemnified parties hereunder, there are no third-party beneficiaries to this Agreement. PSG and Customer are independent contractors. Each Party’s rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses.