Effective Date: September 24, 2020
Thanks for considering Prepear! This agreement provides the rules and terms that will govern our relationship.
This Prepear Professionals Agreement (“Agreement”) is between you, together with any company or other business entity you are representing, if any (collectively, “You”), and Prepear, Inc. (“Prepear”), provider of www.prepear.com website (“Prepear Site”), as well as related applications and services.
Prepear provides software programs and tools that enable individuals and businesses to post recipes, offer meal plans and other goods and services to customers online (“Software”), including software applications (“Apps,” and together with Software, “Tools”). Prepear also provides services, including hosting of online pages, search tools, training, communication tools, marketing services, and other related services as may be offered from time to time (collectively, “Services”).
By using the Tools and Services, You agree to be bound by the terms and conditions of this Agreement, and to all terms and conditions that are incorporated into this Agreement by reference. We may change the terms and conditions of this Agreement, and if You continue using the Tools and Services after such changes You will also be bound by those amended terms and conditions.
You authorize Prepear to process any and all of Your Prepear account transactions initiated through the use of the password that You establish through the Prepear Site and You are solely responsible for maintaining the confidentiality of such password.
1. Who Can Be a Prepear Professional
To use Prepear’s Tools, Services, Additional Features and Beta Services You must be and remain, and You represent, warrant and covenant that You are (a) able to form a legally binding contract under applicable law, and at least 18 years of age, (b) if You are registering as a business entity, You have the authority to bind such entity to this Agreement, (c) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (e) You are not listed on any U.S. Government list of prohibited or restricted parties. If for any reason, Prepear, in its discretion, believes information You provide to us to be incorrect, it reserves the right, without provision of any notice to You, to terminate this Agreement, revoke any and all licenses under this Agreement, terminate Your account, and refuse to provide the Tools, Services and Beta Services under this Agreement to You. You further represent and agree that You have not had a prior account terminated by Prepear or been associated with a Prepear account that was previously terminated.
2. Prepear Tools and Trademark Ownership, and Licenses
You acknowledge and agree that, as between You and Prepear, Prepear is the sole and exclusive owner of the Prepear Site, all Tools, Services and any other content provided by Prepear, and all rights, titles and interest therein and in all intellectual property rights therein. Prepear reserves all rights in and to the Tools and Services not expressly granted to You in this Agreement. You acknowledge and agree that Prepear is the sole and exclusive owner of the Prepear Marks and all rights, titles and interest therein and in all intellectual property rights therein. You further agree that all use of Prepear Marks inures to Prepear’s benefit. You shall not take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Prepear Marks or use the Prepear Marks in such a way as to create combination marks with the Prepear Marks. You acknowledge and agree that, except with respect to the trademark license granted in Section 2(e), Prepear does not grant any other licenses to any other trademarks, service marks, or trade names owned by Prepear, its affiliates, or any third party. At Prepear’s request (in its discretion), You agree to discontinue promptly all use and display of the Prepear Marks.
b. Access and License for Tools.
Subject to the terms and conditions of this Agreement, Prepear grants to You a non-exclusive, non-transferable, revocable, limited license to (a) access and use the Software through the Prepear Site solely for the purpose of operating a page using the Tools and Services on which You offer products, services and content (“Your Page”), and (b) download an App to a compatible mobile device solely to provide access to Your Page and so You can process transactions and communicate with Your users in connection with Your Page.
You acknowledge that the Tools and their look and feel, structure, organization and source code constitute valuable intellectual property of Prepear. Accordingly, except as expressly allowed under Section 2(b), You will not, either directly or indirectly, (a) modify, adapt, alter, translate or create derivative works from the Tools; (b) distribute, sublicense, lease, rent, loan or otherwise transfer the Tools to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Tools, except as expressly allowed by law, or (d) transfer Your interest in and to Your Page to any third party, except as allowed under Section 14(e).
Some Apps are only available for certain mobile devices. Prepear may update, change and discontinue which devices are available from time to time. An App may not be compatible with Your mobile device. No mobile device is compatible if it has been modified from the manufacturer’s software or hardware guidelines, including any disabling of controls, “jail breaking” the device or adding malware. Use of such a modified mobile device with an App or the Services is expressly prohibited and is grounds for termination of this Agreement, Your use of the Tools, Services, and Your Page.
With all Apps, You are responsible for:
- Determining compatibility with Your mobile device;
- Understanding whether the terms of Your agreement with Your mobile device manufacturer and mobile service carrier apply to Your use of the App;
- Controlling access to and use of Your mobile device to prevent the bypassing, disabling, or overriding of any restrictions, security measures, or other limitations of an App or Your device and to prevent malware or other malicious code from being introduced to Your mobile device; and
- Complying with all third party terms, including those of the applicable app provider, such as Apple or Google. This Agreement is between Prepear and You. The app store service providers, such as Apple and Google, are not a party to this Agreement and are not responsible for the App or for furnishing You maintenance and support services with respect to the App.
You acknowledge and agree that the app store service provider from which You downloaded the Apps is a third-party beneficiary of this Agreement and may therefore enforce the terms of this Agreement against You.
e. Trademark License and Restrictions.
Subject to the terms and conditions of this Agreement, Prepear grants to You a non-exclusive, non-transferable, revocable license (without the right to grant sublicenses) to display those trademarks that Prepear provides to You under this Agreement (“Prepear Marks”), solely for display on those locations on Your Page’s web pages or on promotional materials for Your Page, including on a website You own or control that is linked to Your Page, or in connection with an App as designated by Prepear in its discretion, and that Prepear may periodically change from time to time. Prepear grants no rights in the Prepear Marks other than those expressly granted in this Section 2(e).
You agree that the nature and quality of all goods and services that You provide in connection with the Prepear Marks and all related advertising, promotional and other uses of the Prepear Marks by You shall be of a high standard so as to protect and enhance the Prepear Marks and the goodwill pertaining to such marks. You further agree to use Prepear Marks only in conformance with Prepear’s guidelines, which Prepear may change from time to time, and to obtain Prepear’s approval prior to using the Prepear Marks in any manner that is inconsistent with Prepear’s guidelines. You will not take any action or use the Prepear Marks in any manner that could reasonably cause any customer confusion as to our relationship or as to the source of our or Your products and services.
f. Additional Features.
Prepear may make features, software, services, and programs available to You for use with or in connection with the Tools and Services (“Additional Features”). Additional Features may be provided by third parties and may be subject to additional or independent terms and conditions. Prepear is not responsible for any Additional Features provided by third parties. You agree that You will not use such Additional Features unless You have agreed to the applicable terms and conditions, including Your payment of additional fees as required.
a. Changes in Services.
Prepear reserves the right to change, amend, and otherwise alter the Prepear Site, Tools, Services, Additional Features and Beta Services without prior notice to You. You may terminate use of the Prepear Site, Tools, Services and Beta Services if You do not agree to such changes. Prepear will not refund any fees or payments in the event of such termination. You agree to receive administrative communications from Prepear with regard to the Prepear Site, Tools, Services, Additional Features and Beta Services, Your account, policy changes, system updates and other notices.
b. Service Downgrades.
You may change Your Page level of Service at any time. Note that downgrading Your Service may cause the loss of content, features or capacity of Your account. Prepear does not accept any liability for any loss or other issues resulting from Your changing Your level of Service.
c. Third Party Services.
Prepear may make third party services available to You, such as order fulfillment, payment processing and promotional services. You may need to access and use other third party services to use our Services, such as using an app store. Third party services may require agreeing to a separate agreement between You and the applicable vendor. You understand and agree that Prepear is not responsible for the availability or provision of such services or for such third party vendor’s non-performance or breaches of its agreement and no third party has any obligation to provide maintenance and support services to You with regard to the Prepear Site, Tools or Services. You also understand and agree that the third party service vendor is not responsible for Prepear’s services or any breach by Prepear of this Agreement. You do not have the ability to enforce this Agreement against any third party service provider. Prepear does not guarantee the availability, security or delivery of such services or that You will be eligible for any vendor’s services. It is Your responsibility to address all issues with regard to a vendor, including payments, refunds, chargebacks, collections and service outages, with such third party vendor. It is also Your responsibility, and You agree to comply with all applicable agreements You have with such vendors, as well as all laws and industry guidelines regarding payment and orders that apply to merchants, including laws with regard to taxes, privacy and PCI guidelines. You acknowledge that Prepear, not any third party service provider, is responsible for addressing any of Your claims or any third party claims relating to the Tools or Your possession and/or use of the Tools, including, but not limited to: (i) product liability claims; (ii) any claim that the Tools fail to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and (iv) infringement of a third party’s intellectual property. You also acknowledge that all claims under the foregoing sentence are subject to all other terms and conditions in this Agreement.
d. Beta Services.
Prepear may offer You access to pre-release services, features and tools while they are being tested or developed (“Beta Services”). Your use of Beta Services is voluntary and at Your sole risk. You understand and agree that the Beta Services may contain bugs, errors and other defects. Technical support for Beta Services may be limited, if offered at all. Beta Services may be discontinued or changed at any time in Prepear’s sole discretion and without prior notice to You. Prepear may charge, and You agree to pay, all fees associated with Beta Services while they are in beta or when offered generally. Beta Services that become generally offered will be “Tools” for purposes of this Agreement. Beta Services are offered “AS-IS,” “AS AVAILABLE,” and, to the extent permitted by applicable law, Prepear disclaims all liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise related to the Beta Services. If You are using Beta Services, You agree to receive related correspondence and updates from us, and acknowledge that opting out may result in cancellation of Your access to the Beta Services.
e. Professional Services.
You may engage Prepear to provide professional services, such as software configuration or data migration so that programs and data from Your current website or platform can be used with the Prepear Tools and Services. Any such professional services will be detailed on a statement of work or other order form that references this Agreement and is signed by both parties. All professional services will be complete upon delivery. You represent and warrant that You have the authority and all necessary consents or licenses to transfer data, materials, software, programs and content, including personal information, to Prepear, and for Prepear to access and use such data, materials, software, programs and content in connection with providing the Professional Services.
4. Your Page & Content Control
a. Control of Your Page.
You are solely responsible for Your Page. It is Your responsibility to back-up Your data, maintain Your Page, process and fill all customer requests and orders associated with Your Page, and handle all other matters related to Your Page. You agree that although Prepear does backup data related to Your Page, Prepear has no obligation to do so and You should backup Your recipes and other data to sources outside of Your Prepear account, and You will not have access to such data if Your account is terminated.
b. Ownership and Control of Your Page’s Content.
You retain all right, title and interest in and to all intellectual property rights in products, services and content You post to or otherwise offer on or through Your Page, excluding all content provided by Prepear and the Tools and Services. You are solely responsible for Your Page and all content, products, services, marks and other intellectual property used, available on, or offered through Your Page. If Prepear has reason to believe that You have breached any of the terms of this Agreement or broken any law or regulation, Prepear may suspend or terminate Your Page or remove any content from Your Page. You acknowledge that Prepear allows You to list certain third party affiliations as a courtesy and that it is Your sole responsibility for confirming that You are authorized to use and display such affiliation, and all related trademarks related thereto, on Your Page prior to doing so, and that You are, and remain, in full compliance with all the terms and conditions associated with such use and display.
c. Passive Conduit.
You acknowledge that Prepear and its Tools and Services are acting only as passive conduits for the distribution and publishing of products, services and content on Your Page. Prepear has no obligation to You or any third party, and undertakes no responsibility, to review Your Page, the products, services and content posted to or offered on or through Your Page. Regardless of anything else in this Agreement, if Prepear believes in its discretion that Your Page or any products, services, content, or other materials in Your Page or on Prepear Servers, or Your use of any Tools, Service, Additional Features or Beta Services, may create liability for Prepear or harm other users of Prepear’s websites or services, then You agree that Prepear may take any actions that Prepear believes are prudent or necessary to minimize or eliminate Prepear’s potential liability or to protect other users of Prepear’s websites or services.
d. Content License.
You hereby grant to Prepear, and its subcontractors and vendors, a non-exclusive, irrevocable, perpetual, sublicensable, royalty-free, transferable, worldwide license to (i) reproduce, distribute, create derivative works of, transmit, perform, display and use Your photos, recipes, content, data, and trademarks to host Your Page, provide the Tools, Services and Beta Services, and to otherwise promote and manage the Prepear Site, (ii) gather, or have gathered, through automatic and manual means, photos, recipes, content and data from any website that is linked to Your Page and to reproduce, distribute, create derivative works of, transmit, display, and use such photos, recipes, content, and data on and through the Prepear Site, and (iii) create, publish, print, manufacture, market and sell any products as part of Additional Features. You agree that others can view and use any of Your content that You make public or permit to be shared or accessed, including other users. You understand and agree that copies of Your Page, or parts of Your Page, may continue to be stored on Prepear servers, and in the accounts of other Prepear users, after You terminate Your account but that we have no obligation to keep or store any of Your content or information. You also agree that any content, information, materials or anything else that You provide to a user of the Services or allow a user to share or access may be stored by such user, either as part of the Service or otherwise, and Prepear will not, and has no obligation to, remove such content, information, materials or anything else from a user’s account after Your account is terminated or after You end Your relationship with the user. You acknowledge and agree that Prepear, its subcontractors, and vendors may use Your content for beta testing purposes even if such beta tests do not have a positive impact on performance.
e. Claims Against Your Page.
f. Prohibited Uses.
You agree and covenant that all products, services and content posted to and offered on or through Your Page, and Your related activities, including use of the Tools, Services, Prepear Site, Additional Features, Beta Services, and Your linked sites will not, as determined in Prepear’s discretion:
- advocate, promote, or endorse any nutritional recommendations, meal plans, health advice or other information that could be harmful;
- be false, fraudulent, inaccurate or misleading;
- involve any counterfeit, stolen, illegal or unlawful items or services;
- infringe, misappropriate or violate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- violate any law, statute, ordinance, regulation, industry guideline or third party terms (including those governing food, drugs, dietary supplements, privacy, publicity, consumer protection, intellectual property, gambling, data security standards, unfair competition, antidiscrimination, criminal activities, pyramid and Ponzi schemes and false advertising);
- be defamatory, libelous, offensive, threatening or harassing, including any hate speech;
- advocate, promote, or provide assistance with regard to any violent, discriminatory, harmful or other unlawful activities;
- be obscene or include pornography;
- contain any viruses, malicious or harmful code, or otherwise deploy or use computer programs or code that may damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information, or disable any system, software, or hardware that is intended to encrypt, obscure or protect data or personal information;
- involve SPAM or other transmission of any unsolicited commercial or bulk email;
- artificially generate, whether manually or by automatic means, any activity on or through Your Page or any accounts associated with Your Page;
- involve the sale or provision of:
• Herbs, drugs, tobacco, smokeless tobacco, alcohol, drug paraphernalia and substances designed to mimic drugs;
• Chemicals, serums, toxins and similar items;
• Pets and animals; and
• Weapons, fireworks, destructive devices, explosives and any other hazardous materials;
- involve the collection, sale, storage or transmission of, or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity;
- be harmful or potentially harmful to Prepear servers or systems, including without limitation overloading Prepear’s technical infrastructure;
- involve subleasing Your account or offering “free space” on or other access to Your account or Your Page to third parties;
- create liability for Prepear, its vendors or its subcontractors or expose them to undue risk or otherwise engage in activities that are harmful to Prepear, its vendors, affiliates, operations, reputation, goodwill or users;
- use Your Page to link to, or to support, directly or indirectly, any other website, entity or activity that violates these terms or any applicable law, statute, ordinance, or regulation; and
- bypass, disable or override any restrictions, security measures or other limitations on Your account, Your Page, the Services, or Tools.
If You provide any feedback (“Feedback”) about the Prepear Site, Prepear or the Tools, Services, Beta Services or Additional Features, then You agree Prepear can use such feedback in its discretion without any obligation, attribution, or compensation to You, and You waive all rights in the Feedback.
5. Commissions and Taxes
We pay commissions as provided on our Prepear Pro Payment Terms page (“Commissions”). We reserve the right to modify all or part of the Commissions, including the amounts, limitations, exclusions and other terms of the program, at any time.
You are solely responsible for collecting and reporting taxes on products and services You offer on, through or connected with Your Page. You are solely responsible for all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the any Commissions paid to You. No part of the Commissions will be subject to withholding by Prepear for the payment of any social security, federal, state or any other employee payroll taxes and we will regularly report Commissions paid as required by law.
Prepear shall keep accurate books of account and records covering all transactions relating to the Commissions, and You or Your duly authorized representatives (on the condition the representative has entered into a non-disclosure agreement with, and acceptable to, Prepear) shall have the right no more than once per calendar year upon five business days prior written notice, and during normal business hours, to inspect and audit Prepear’s records relating to the Commissions payable under this Agreement. You shall bear the cost of such inspection and audit, unless the results indicate an underpayment greater than $ 300 for any two-month (2-month) period. In that case, Prepear shall promptly reimburse You for all reasonable costs of the audit along with the amount due with interest on such sums. Interest shall accrue from the date the payment was originally due, and the interest rate shall be 1.5% per month, or the maximum rate permitted by law, whichever is less. All books of account and records shall be made available in the United States and kept available for at least two years after the termination of this Agreement.
6. Disclaimer of Warranties.
PREPEAR, ITS VENDORS, LICENSORS, AND SERVICE PROVIDERS, PROVIDE THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, AND ANY PROFESSIONAL SERVICES, ON AN “AS IS” AND “AS AVAILABLE” BASIS. PREPEAR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES REGARDING THE COMPLETENESS, QUALITY, ACCURACY OR NATURE OF THE CONTENT, PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, AND PROFESSIONAL SERVICES, INCLUDING WITH REGARD TO SECURITY, MERCHANTABILITY, OWNERSHIP, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. PREPEAR AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS REGARDING THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, AND PROFESSIONAL SERVICES OR ANY DELAYS IN OR INTERRUPTIONS OF THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, AND PROFESSIONAL SERVICES. YOU UNDERSTAND THAT NEITHER WE NOR OUR LICENSORS GUARANTEE OR WARRANT THAT FILES WILL BE AVAILABLE OR THAT THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES AND ADDITIONAL FEATURES WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. NEITHER WE NOR OUR LICENSORS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, AND PROFESSIONAL SERVICES OR ANY ITEMS, CONTENT OR OTHER MATERIALS OBTAINED THROUGH THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, AND PROFESSIONAL SERVICES OR TO YOUR USE OF ANY MATERIAL POSTED ON IT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW AND ONLY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
In the event of any failure of an App to conform to any applicable warranty, You may notify the app store from which You purchased the App regarding any refund of purchase price for the App to You according to the app store service provider’s terms and You agree that the app store service provider will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Your sole responsibility.
7. Limitation of Liability.
IN NO EVENT WILL PREPEAR, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PREPEAR SITE, TOOLS, SERVICES, BETA SERVICES, ADDITIONAL FEATURES, PROFESSIONAL SERVICES, ITEMS, CONTENT OR OTHER MATERIALS OBTAINED THROUGH THE PREPEAR SITE OR OTHERWISE PROVIDED BY PREPEAR, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. PREPEAR’S AND ITS LICENSORS’ SERVICE PROVIDERS’, EMPLOYEES’, AGENTS’, OFFICERS’ AND DIRECTORS’ TOTAL, COLLECTIVE, AND AGGREGATE LIABILITY TO YOU UNDER THESE TERMS AND IN CONNECTION WITH YOUR USE OF THE PREPEAR SITE, TOOLS, SERVICES, ADDITIONAL FEATURES, AND PROFESSIONAL SERVICES IS LIMITED TO $100.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW AND ONLY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Product Claims.
You acknowledge that Prepear, not the app store service provider, is responsible for addressing any of Your claims or any third party relating to the App or Your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and (iv) infringement of a third party’s intellectual property. You also acknowledge that all claims under the foregoing sentence are subject to all other terms and conditions in this Agreement.
9. Important Note to New Jersey Consumers.
There are some special rules for residents of New Jersey. If You are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to You (and do not limit any rights that You may have) to the extent that they are unenforceable under New Jersey law: (a) in the Section titled Limitations of Liability, specifically the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) in the Section titled Limitations of Liability, specifically the limitation on liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) in the Section titled Limitations of Liability, specifically the application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) in the Section titled Indemnification below, specifically the requirement that You indemnify Prepear (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) in the Section titled Governing Law and Jurisdiction below, specifically the Utah governing law provision (for example, to the extent that Your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
a. You agree to indemnify and hold Prepear, its vendors and service providers, and their officers, members, directors, agents and employees, harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys’ and expert witnesses’ fees) incurred or arising from: (i) any products, services, content and other materials You post to Your Page or that You otherwise provide, store, sell or distribute or that are generated by users of Your Page, and all of Your activities and omissions related to Your Page; and (ii) any breach by You or those You control of this Agreement, including representations and warranties You provide, or the documents this Agreement incorporates by reference. Prepear’s, its vendors’, and service providers’ indemnity rights shall not be limited or offset by any contributory negligence by Prepear. Prepear reserves the right to assume the exclusive defense and control of any matter otherwise subject to Your indemnification, and in such case, You agree to cooperate with, and pay for, Prepear’s defense of such claim.
b. Prepear agrees to defend, indemnify and hold you harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys’ and expert witnesses’ fees) incurred or arising from third party allegations that: (i) Your use of the Tools or Services in accordance with the terms of this Agreement infringe such third party’s United States intellectual property rights, and (ii) Prepear has breached a law applicable to Prepear’s provision of the Tools or Services under this Agreement. If any Tools or Service, or part thereof, is, or in Prepear’s opinion may, infringe the rights of a third party, Company shall at its expense (i) procure the right for You to continue using the Tools or Services or part thereof, (ii) replace the Tools or Service or part thereof with a non-infringing equivalent, or (iii) modify the Tools or Service or part thereof to make it non-infringing, or (iv) terminate this Agreement.
c. The indemnified party will provide the indemnifying party with reasonably prompt notice of claims under this Section 10 for which it is seeking indemnification, except that failure to give prompt notice will relieve the indemnifying party of its indemnity obligations only to the extent the delay caused material prejudice; and provide the indemnifying party with reasonable information and assistance to help the indemnifying party defend such claims at the indemnifying party’s expense. Neither party will stipulate, admit, or acknowledge any fault or liability on the part of the other without prior written consent.
You represent, warrant and covenant that You (a) have the authority to bind Yourself to this Agreement, (b) are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and (c) are not listed on any U.S. government list of prohibited, debarred or restricted parties. You also agree that by using the Prepare Site, Services, Tools, Additional Features, Professional Services, or Beta Sevices, You are electronically signing this Agreement and that such signature has the same effect as a standard ink or paper signature. You acknowledge and agree that You: (i) are able to print a complete and legible copy of this Agreement and save the same in a complete and legible form, (ii) are capable of opening, reading, printing, downloading and/or saving all sections of the Agreement, and (iii) had reasonable opportunity to review each section of the Agreement, read the Agreement and agree to it.
a. Data Ownership.
13. Suspension and Termination
At Prepear’s discretion, Prepear may suspend Your account or any part of Your account by deactivating Your or Your customer’s access to any information contained on Prepear’s servers related to Your account, and by suspending Your use of the Prepear Site, Tools, Services, Additional Features and Beta Services. Suspension may also include disabling Your Page and any access to information or data related to Your account. You will remain responsible for the payment of all fees during any such period of suspension.
You and Prepear may terminate this Agreement and Your account at any time.
c. Rights Upon Termination.
In the event of this Agreement terminates for any reason, the licenses granted under Section 2 of this Agreement will automatically and immediately cease and You shall stop using the Prepear Site, Services, Tools, Beta Services and Additional Features, destroy all copies of the Tools in Your possession, if any, and remove all Apps from Your mobile devices. You will not have access to Your account after termination. Upon termination, there will be no refund provided to You except as otherwise agreed to in writing by Prepear and all outstanding fees owed by You shall become immediately due and payable. Prepear will pay all Commissions due and owing that were properly incurred prior to termination within sixty days of termination. Termination will not affect the rights of Prepear to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs, and/or attorneys’ fees or expert witnesses’ cost or other costs of any kind under this Agreement.
Survival. Sections 2(a) (Ownership), 4(b) (Ownership and Control of Your Page’s Content), 4(d) (Content License), 4 (g) (Feedback), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), 9 (Important Note to New Jersey Consumers), 10 (Indemnity), 12(a) (Data Ownership), 13(c) (Rights Upon Termination), 13(d) (Survival), and 14 (General), as well as all definitions needed to give meaning to such sections and any terms that by their nature survive, will survive any termination or expiration of this Agreement.
a. Governing Law and Jurisdiction.
This Agreement will be governed in all respects by the laws of the State of Utah without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. You agree that any cause of action that may arise under this Agreement or in connection with Your use of the Prepear Site, Tools, Services, Additional Features, or Beta Services will be commenced and heard only in the appropriate court having jurisdiction over Salt Lake City, Utah. You hereby consent to the exclusive jurisdiction of and venue in such courts.
No Class Actions. YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT ALLOWED.
Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS, OR THE SUBJECT MATTER OF THESE TERMS.
b. Legal Compliance.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Prepear Site, Tools, Services, Additional Features and Beta Services and all uses of Your Page.
c. No Agency.
You and Prepear are independent contractors, and this Agreement is not intended to create, and does not create any agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship. You have no authority to bind us in any manner and You shall not accept any obligation on our behalf without our prior, express, written consent.
d. Force Majeure.
Neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, terrorist act, governmental act or order, act of God, failure in electric power or telecommunications services, or any other event beyond the reasonable control of the party.
You shall not assign, transfer or delegate this Agreement or any rights or obligations under this Agreement without our prior written consent. Any assignment, transfer or delegation in contravention of the foregoing provision will be null and void. You agree that this Agreement may be assigned by Prepear, in Prepear’s discretion without Your consent. This agreement is binding on Your permitted assignees and transferees.
f. No Third Party Beneficiary.
You acknowledge and agree that nothing in this Agreement, express or implied, is intended to or will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies, or other benefits with respect to or in connection with any agreement or provision contained in or contemplated by this Agreement, except that certain third party service providers may enforce the terms of this Agreement against You.
g. Severability; Waiver.
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. Prepear’s failure to act with respect to a breach by You or others does not waive Prepear’s right to act with respect to such breach or any subsequent or similar breaches.
Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section. When used in this Agreement, the term “including” means “including but not limited to,” and “discretion” means the sole discretion of the applicable party unless expressly stated to the contrary.
i. Entire Agreement.
This Agreement, together with the agreements and policies that are incorporated into this Agreement by reference, sets forth the entire understanding and agreement between You and Prepear with respect to the subject matter of this Agreement.
j. Contact Information.
You may direct any questions, complaints or claims to Russ Monson at firstname.lastname@example.org