Effective: September 16, 2020
Prismatic Software Inc. ("Prismatic," "we", "us") provides a development platform with solutions and services to facilitate the development, hosting and delivery of software integrations (collectively the "Services") for use by software companies ("Organizations," or "you"). Your Order Form (if applicable) along with these Terms of Service (collectively "Terms") govern your creation of an account and access and use of the Services and form a legal agreement between Prismatic and the Organization on whose behalf you are creating an account or using the Services.
You represent and warrant that you are authorized to enter into this agreement on behalf of your Organization. By either: (i) creating an account; (ii) clicking on the "I Agree" button; or (iii) accessing or using the Services, you accept and agree that your Organization, and all users under your account, are bound by and shall abide by these Terms. If you do not agree to these Terms, do not create an account or access or use the Services.
Prismatic reserves the right to make changes to these Terms at any time. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. By using Services after updated Terms are posted, you agree to be bound by such updated Terms. If you are dissatisfied with the Services or these Terms, your sole and exclusive remedy is to cancel your subscription and discontinue using the Services.
Use of the Services is also subject to our Acceptable Use Policy.
Prismatic will make the Services available to the Organization for the term and at the subscription level identified in the Order Form and pursuant to these Terms. Your use of the Services is limited to the number of deployed instances ("Instances") or other usage limits specified in the Order Form. If your use exceeds the usage metrics described on the Order Form per Instance, Prismatic reserves the right to review and recalculate your fees.
If you have purchased Professional or Enterprise level Services, Prismatic will use commercially reasonable efforts to make such purchased Services generally available 24 hours a day, 7 days a week except for planned downtime or any unavailability caused by circumstances beyond Prismatic's control.
If you have purchased Professional Level Services, Prismatic will provide telephone support.
If you have purchased Enterprise level Services, Prismatic will provide service levels in accordance with any separate service level agreement provided to you by Prismatic.
For clarity, the foregoing commitment shall not apply to any free Services (e.g. Basic level subscriptions); such free Services are provided without any availability commitments, support or service level commitments or any post-termination transition periods.
You must register and create an account for your Organization in order to access and use the Services. To create an account, you will need to provide information on behalf of your Organization and your authorized users including for each authorized user, a full name, a valid e-mail address and a strong password. It is a condition of your access and use of the Services that all the information provided in connection with your account is correct, current, and complete. The administrator for an Organization will be able to (i) invite individual team members from your Organization and/or your Organization's customers to create individual user accounts under your Organization's account and (ii) designate certain permissions based on roles. All such individuals will be considered authorized users under your Organization's account for which your Organization remains responsible. Organizations with Professional or Enterprise level subscriptions will also be able to set up separate instances for its designated customer entities.
Each authorized user under your Organization's account should treat their account credentials (username and password) as confidential. You are responsible for all activity in connection with your Organization's account. You agree to notify us immediately of any unauthorized access to or use of your Organization's account or any instances for your customers and to change (or instruct changes to) your passwords immediately if you feel security has been compromised. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you or any users on your account have violated any provision of these Terms.
You may create, upload and deploy software code and materials (collectively "Organization Content") through your use of the Services. As between Prismatic and you, you retain ownership and responsibility of Organization Content. You are solely responsible for the content of your Organization Content and for ensuring that you have all necessary rights to use, upload and deploy it and all necessary rights to provide any integrations and Organization Content to your customers or other third party.
As between you and Prismatic, Prismatic has no responsibility or liability with respect to your agreements with your customers. You are responsible for ensuring that you comply with all terms of agreements between you third parties and any other agreements relating to your Organization Content. You represent and warrant that your use of the Services (and your use of the Services by your authorized users) does not conflict with any other agreement to which your Organization or, as applicable, your customers authorized under your account, are a party.
You hereby grant to Prismatic a limited worldwide, license during the term of your subscription to copy, use, host, transmit and display your Organization Content, each as appropriate or necessary for Prismatic to provide you (and your authorized user and customers) with the Services in accordance with this Agreement. We do not review Organization Content but we have the right to remove any Organization Content that, in our sole discretion, violates these Terms, any of our policies, applicable law, or the rights of other parties, e.g. in response to a DMCA "take down" request.
If you choose to provide us any feedback, comments or ideas about the Services (for example, ideas about how might update or improve the Services), such feedback, comments and ideas will be considered non-personal, non-confidential to you and non-proprietary to you and you agree that we are free to use them for any purpose in our sole discretion and you further agree to assign and hereby assign rights to Prismatic all rights, title and interest to such feedback, comments and ideas.
If you believe your copyrighted materials may have been infringed by any content uploaded to or hosted within the Services, please submit a written claim to our Copyright Agent at:
Prismatic Software Inc.
5013 S Louise Ave #122
Sioux Falls, SD 57108
Written claims concerning for copyright infringement must include the following information:
- A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located within the Services;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Subject to your compliance with these Terms and during your subscription term, we hereby grant you a non-exclusive, non-transferable right to access and use the Services (including all content with the Services), solely and strictly for your Organization's development and deployment of your Organization Content in accordance with these Terms. You understand and agree that the Services are provided under license to you, not being sold to you, and you do not gain any ownership interest of any kind in the Services under these Terms.
The Services are controlled and operated by Prismatic from its offices in the United States and are intended only for use by users in the United States. Prismatic makes no representation that the information or materials on or linked through the Services are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws, rules and regulations in their respective location in doing so.
You shall not use the Services for any purposes beyond the scope of the access granted by these Terms. You shall not at any time, directly or indirectly, and shall not permit any users to: (i) reproduce, modify, adapt, translate, create derivative works of or otherwise exploit any portion of the Services; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
In connection with the Services, you must not: (i) transmit or otherwise make available through or in connection with the Services, any virus, work, Trojan horse, time bomb, or other computer code, file or program that is potentially harmful or malicious; (ii) use any device, software or routine that interferes with the Services; (iii) use the Services in an unlawful or fraudulent manner; (iv) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services; (v) use any automatic device, process or means to access the Services for any purpose, including monitoring (except as described in the documentation or expressly permitted by Prismatic) copying content on the Services and (vi) otherwise attempt to interfere with the proper working of the Services. We reserve the right to terminate access to the Services for any breach of the Terms. We may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
Your Organization is responsible for ensuring that all persons who access the Services through your account are aware of these Terms and comply with them. We may block, limit or terminate your access to the Services for any of your users for any reason, including if you or any of users on your account: (i) violate these Terms; (ii) violate any applicable law or regulation relating to your use of the Services; (iii) engage in any conduct which we, in our sole discretion, believe is offensive, harmful, defamatory or otherwise harmful to us or others; or (iv) breach any other agreement with us.
For your use of the Services, you will pay all fees as specified in an Order Form. Unless another payment method is separately agreed to in a written agreement, you authorize us to charge the credit card you provided in the Order Form for your initial subscription term and any renewal subscription terms as specified in the Order Form. Payments for subscription terms are not non-refundable. You are responsible for providing up-to-date billing information for your account and updating your account with any changes.
The Services are sold and purchased on a subscription basis as identified in the Order Form. Upon termination of the Services, your account and the Services will become unusable and, if applicable, users are not entitled to any refund of any subscription fees. Prismatic is under no further obligations to you upon termination of the Services. Notwithstanding for the foregoing, for Organizations with fee-based subscriptions only, upon your written request, your Organization Content will be made available to you for download at no additional cost for a period of thirty (30) days from the date of termination or expiration.
You acknowledge that, as between you and Prismatic, Prismatic owns all right, title, and interest, including all intellectual property rights, in and to the Services and, with respect to any third-party products made available through the Services, the applicable third-party, owns all right, title, and interest, including all intellectual property rights, in and to the third-party products.
Prismatic names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Prismatic. All rights are reserved. You are not authorized to use any Prismatic name or mark in any advertisement, publicity or in any other commercial manner without prior written consent of Prismatic. All other trademarks appearing in connection with the Services are the property of their respective owners.
The entire contents and design of the Services are protected by U.S. and international copyright law. All rights regarding the Services and materials contained on the Services are either owned by Prismatic, are licensed to it, or are used with permission. Prismatic and its licensors, vendors or other service Prismatic retains and reserve all proprietary rights to the contents of the Services.
We may from time to time in our sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
We maintain appropriate administrative, physical and technical safeguards designed for the security and integrity of your Organization Content. However, we cannot guarantee the security of your Organization Content hosted or deployed via the Services. You acknowledge and agree that we are not responsible for circumvention of any privacy settings or security measures contained in the Services.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND PRISMATIC HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PRISMATIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PRISMATIC MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR ORGANIZATION'S OR YOUR CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
You agree to defend, indemnify and hold Prismatic, its parent and affiliate entities, and all of their owners, officers, directors, employees, contractors and service providers, harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to (i) your use of the Services or the use of the Services by any of your authorized users (including your customers as designated by you under your account); (ii) your breach of these Terms; and (iii) any claims by a third party (including without limitation, your customers or their customers) that the Organization Content or any use of your Organization Content as permitted by you through the Services violates the terms of any other agreements or infringes any intellectual or other rights of any third party. We reserve the right to assume the control of defense of any third party claims that are subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
These Terms are governed by and construed in accordance with the laws of South Dakota without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the federal courts of the South Dakota. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control. If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions. The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future. Any notices provided by us under these Terms will be given: (i) via e-mail; or (ii) by posting within the Services; the date of transmission or posting will be deemed the date on which such notice is transmitted. We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. You may not assign rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without our prior written consent. These Terms and the Acceptable Use Policy constitute the sole and entire agreement between you and Prismatic regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.
If you have questions or comments about the Services or these Terms, please contact us as noted below:
Prismatic Software Inc.
5013 S Louise Ave #122
Sioux Falls, SD 57108