Terms and Conditions of Use

Last updated 3/18/2015

 

PREPAREDEX LLC

SERVICE AGREEMENT

BEFORE YOU CLICK ON THE “ACCEPT” BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE ACCEPTING THIS AGREEMENT AND CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS THIS SERVICE.

THIS SERVICE AGREEMENT (“Agreement”) is by and between PreparedEx, LLC (“PreparedEx”) and the customer Accepting this Agreement (“Customer”).  Certain capitalized terms have the meanings given them in Section 11.  For good and valuable consideration, receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:

  1.  PROVISION OF PRODUCT.

(a)        Provision of Service.  Conditional upon payment of the applicable Subscription Fees under Section 4, PreparedEx will provide the Service to Customer and Customer Users during the Subscription Term in accordance with the service levels specified in the Service Level Agreement.

(b)        Use of Service.  Customer agrees (1) that Customer’s use of the Service will be in a manner consistent with this Agreement and with all applicable laws and regulations, including without limitation, copyright, trademark, and export control laws, and laws prohibiting the use of telecommunications facilities to transmit illegal, obscene, harmful to minors, threatening, harassing, or other offensive information or messages; (2) to impose such condition on all Customer Users; and (3) to cooperate with PreparedEx in any action reasonably intended to enforce foregoing clauses (1) and (2).  Customer will use the Service, and will permit the Service to be used, only for internal training and preparation, and only for the benefit of Customer and its wholly owned subsidiaries.

(c)        Local Software.  The Service is generally provided in a manner which does not require Customer Users to download or use any of PreparedEx’s software. If PreparedEx does provide Customer Users with installable software (such as a plug-in or similar item) (“Local Software”), PreparedEx grants each Customer User a non-transferable and non-exclusive right and license to use the object code of such Local Software solely in connection with such Customer User’s use of the Service in accordance with this Agreement; provided that Customer and Customer User may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, distribute, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Local Software.

  1. LIMITATIONS ON USE.

Except as expressly authorized herein, Customer shall not:  (A) copy the Product; (B) distribute, disclose, market, rent, lease make available to any third party the Service, any portion thereof or Documentation, or use the Service or Documentation in any service bureau arrangement; (C) use any third party licensed software products or modules provided by PreparedEx to the Customer under this Agreement independently from the Service; or (D) modify, or create derivative works of, the Product.

  1. MECHANICS OF USE, OWNERSHIP

(a)        General.  Generally speaking, the Service permits Customer to provide content (the “Customer Content”), which Customer Content will be used to customize one or more scenarios on the Product (which is a gaming platform provided by PreparedEx), enabling Customer Users to use the Service to participate in customized training exercises.

(b)        Registration.  As part of the registration process, Customer will create an account, including a username and password.  Customer shall be responsible for all use of Customer’s account using Customer’s username and password.  Customer shall promptly notify PreparedEx if Customer suspects its username and/or password has been compromised, and will promptly create a new username and/or password.

(c)        Customer Users.  Customer will subscribe for a maximum number of Customer Users, as set out in the Services Schedule.  Each Customer User will have its own username and password.  Each Customer User shall be a unique individual with his/her own account, and accounts may not be shared by multiple individuals.

(d)       Ownership.  As between PreparedEx and Customer, (i) Customer retains all right, title and interest in and to the Customer Content and to any information related to each identifiable Customer User, and (ii) PreparedEx retains all right, title and interest in and to the Product, the Service and any general or anonomized information generated by, or collected through the operation of, the Service. Except as specifically set out in this Agreement, PreparedEx hereby reserves all intellectual property rights in the Product.

(e)        Upgrading/Downgrading Accounts.  Customer may upgrade or downgrade its Services at any time by using the modification facility provided in the Service.  No refunds will be offered for downgraded accounts – the new, lower charge will be applied automatically at the next renewal date.  Additional fees will be charged for upgraded accounts, and shall be due promptly upon the upgrade (Bronze to Silver will be prorated for any partial year and Gold will be a full priced increase).  If Customer downgrades its Services, Customer will be solely responsible for all data maintained by the Service and removal of any data within the account connected to the downgrade.

  1. FEES.

(a)        Fees.  Customer shall pay PreparedEx the fees listed on the Service Schedule.  Any Services added after the date of this Agreement, and any renewals of Services, shall be priced and paid for as set out in the PreparedEx fee schedule at https://preparedex.net/services/, as in effect from time to time.  All amounts payable hereunder shall be paid in U.S. Dollars.  All Services will be billed annually in advance.  All payment is due in annually in advance.  As a condition of use, a valid debit or credit card must be on file with PreparedEx at all times in order for Customer’s account to remain active.  If a credit or debit card payment request is made by PreparedEx and is declined by Customer’s bank or other processor, access to Customer’s account(s) may be suspended until such time as a valid payment has been processed and a valid credit or debit card is associated with Customer’s account(s).

(b)        No Refunds.  Except as provided in Section 5(e), Section 7(a) or the Service Schedule, all payments hereunder are non-refundable, including without limitation by reason of early termination of the Service by Customer or cancellation of requests for enhancements outside the Service Schedule.

(c)        Taxes.  Customer is responsible for all sales, use, value-added, excise, services, consumption and other similar taxes or duties resulting from the provision of the Services to Customer hereunder, except PreparedEx is responsible for all taxes based on ownership of its own property or on its net income.

  1. TERM AND TERMINATION.

(a)        Term.  The term of this Agreement shall commence on the Effective Date and shall terminate on the end of the Subscription Term indicated on a Service Schedule unless sooner terminated as provided below.

(b)        Extension.  After the initial Subscription Term, this Agreement shall continue for Renewal Subscription Terms specified in the Service Schedule, and Customer shall pay the Fees therefore set forth on the Web Site, unless either party notifies the other of its intention to discontinue this Agreement at least sixty (60) days prior to the end of the initial Subscription Term (or then-current Renewal Subscription Term as the case may be).

(c)        Termination by Customer Without Cause.  Customer may terminate this Agreement at any time, but only by using the cancellation/termination facility provided within the Service.  No other notice of termination (whether in person, or by email, telephone, text message, certified mail or otherwise) shall be valid.

(d)       Termination for Breach.  Either party will have the right to terminate this Agreement immediately by delivery of written notice to the other party if the other party is in material breach of any warranty, term, condition or covenant of this Agreement, and the breaching party has failed to cure that breach within thirty (30) calendar days after receiving written notice of that breach and of the non-breaching party’s intention to terminate.

(e)        Limited Refund of Fees.  Upon any breach of this Agreement by PreparedEx, as Customer’s sole remedy and PreparedEx’s sole liability, Customer may terminate this Agreement by written notice to PreparedEx as provided in Section 5(d) and PreparedEx shall refund the unused portion of the fees set out in the Service Schedule, determined on a pro rata basis over the Subscription Term.

(f)        Effect of Termination.  Upon termination of this Agreement, the following sections of this Agreement will survive:  2, 3(d), 4(b), 4(c), 5(e), 5(f) and 6 through 12.  Termination does not relieve a party of liability for any breach occurring prior to termination.  For avoidance of doubt, upon termination, Customer’s right and ability to access the Service shall automatically terminate.

  1. CONFIDENTIALITY.

(a)        Customer User Information.  PreparedEx will use reasonable commercial efforts to keep confidential the materials Customer and Customer Users provide to the Service for processing (the “Customer User Information”).  PreparedEx may provide the Customer User Information to third parties that perform operation and development services for PreparedEx for technical purposes, subject to confidentiality agreements between PreparedEx and such third parties.  In addition, PreparedEx may use data stored on the Service (and statistics about the use of the Service) in order to operate the Service, including for the purpose of verification of compliance with this Agreement.  As part of PreparedEx’s operations, it may transfer or merge particular businesses and/or other assets (including its rights to use Customer User Information and any related personal and business information) to a third party and make such information available to a third party under confidentiality restrictions; provided that PreparedEx will not sell Customer User Information to a third party except in the course of selling all or substantially all of its business, whether by merger, consolidation, change of control, asset sale or otherwise.

(b)        Customer grants PreparedEx the right to reproduce, copy, use and distribute any materials submitted by Customer to PreparedEx, whether stored on or distributed via the Service, to the extent appropriate to operate the Service, and warrants that PreparedEx is permitted to reproduce, copy, use and distribute any Customer User Information stored on or distributed via the Service to the extent appropriate to operate the Service.

(c)        Confidentiality.  Each party (acting as the “Receiving Party”)  agrees to maintain the confidentiality of this Agreement and the Confidential Information of the other party (acting as the “Disclosing Party”) using reasonable commercial efforts but in no event less than the degree of care and security it uses to maintain the confidentiality of its own most Confidential Information.  The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party except as permitted under this Agreement.  Each party shall use such Confidential Information only to perform its obligations under this Agreement, shall disclose the Disclosing Party’s Confidential Information only within its organization and only to those of its employees who need to know such information to perform its obligations under this Agreement or in the case of Customer, to access the Service.  Information shall not be considered to be Confidential Information if it: (i) was in the public domain at the time it was disclosed or enters the public domain without violation of this Agreement; (ii) was known to the Receiving Party, without restriction, at the time of receipt as shown by the files of the Receiving Party in existence at the time of disclosure; (iii) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) becomes known to the Receiving Party, without restriction, from a third party without breach of this Agreement and otherwise not in violation of the Disclosing Party’s rights.  If a Receiving Party is confronted with legal action to disclose any portion of the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify and assist the Disclosing Party (at the Disclosing Party’s request and expense) in obtaining a protective order or other similar order, and shall thereafter disclose only the minimum of the Disclosing Party’s Confidential Information that is required to be disclosed in order to comply with the legal action, whether or not a protective order or other order has been obtained.  Notwithstanding the foregoing, each of the parties may disclose the terms of this Agreement to its accountants, attorneys and potential investors, acquirers and financing partners in confidence.

  1. LIMITED WARRANTY AND WARRANTY DISCLAIMER.

(a)        Warranty.  Subject to Section 9, PreparedEx warrants that the Service shall perform substantially in accordance with the Documentation.  Customer’s exclusive remedy and PreparedEx’s sole liability under this warranty shall be for PreparedEx to correct any material failure of the Service to perform as warranted, if such failure is reported to PreparedEx within the warranty period and Customer, at PreparedEx’s request, provides PreparedEx with sufficient information  to reproduce the defect in question.  If PreparedEx cannot, after repeated efforts, remedy such failure, PreparedEx shall refund any unused fees received by PreparedEx from Customer hereunder (determined on a pro rata basis) and terminate this Agreement and access to the Service.  This warranty is made solely to Customer.  Customer shall be solely responsible for any warranty to, or claims by, third parties.  This warranty covers the functionality of the Service only, and does not extend to the availability (or “up time”) of the Service, which is addressed in the Service Level Agreement.

(b)        Disclaimer.  THE ABOVE ARE THE ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY PREPAREDEX AND PREPAREDEX DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PREPAREDEX, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.

  1. INDEMNIFICATION.

(a)        By PreparedEx.  Subject to Section 9 and to compliance with Section 8(c) by Customer, PreparedEx will defend and indemnify (in accordance with Section 8(c)) Customer and its officers, directors, and employees against any third party claims that the use of the Service within the scope of this Agreement infringes any trade secret, copyright, United States trademark or United States patent granted prior to the date of this Agreement.

(b)        By Customer.  Subject to compliance with Section 8(c) by PreparedEx, Customer will defend and indemnify (in accordance with Section 8(d)) PreparedEx and its officers, directors, and employees against any third party claims that the use by PreparedEx of materials provided by Customer (or Customer Users) for use in connection with the Service infringes any United States copyright or constitutes misappropriation of a trade secret.

(c)        Procedure.  For the indemnification obligations above to be applicable, the person or entity desiring indemnification (the “Indemnified Party”) must (1) promptly notify the party against which it is seeking indemnification (the “Indemnifying Party”) in writing of any such claim and offer the Indemnifying Party the opportunity to control the defense and all related settlement negotiations, and (2) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim.  Indemnifying Party shall not have any right, without Indemnified Party’s written consent, to settle any such claim if such settlement contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Indemnified Party.

(d)       Indemnification Obligation.  The obligation of the Indemnifying Party to “defend and indemnify” in Section 8(a) and Section 8(b) means the Indemnifying Party will pay any damages, fines, penalties and costs finally awarded against the Indemnified Party in such action or proceeding that are attributable to such claim referred to above, and the cost of a settlement agreed to by the Indemnifying Party; and also that the Indemnifying Party shall also bear all costs of defense that the Indemnifying Party incurs in connection therewith (including reasonable legal fees), and the out-of-pocket expenses of the Indemnified Party in connection with the defense by the Indemnifying Party.  The Indemnified Party may also engage its own counsel in connection with such claim or proceeding, but the expense of such attorney shall be borne by the Indemnified Party.

(e)        Mitigation of Damages.  If the Service infringes or misappropriates, or is alleged to infringe or misappropriate, any copyright, trademark, trade secret, patent or other intellectual property right, or violation of any right of privacy or publicity PreparedEx shall have the right to:  (i) procure for Customer the right to continue using the Service; or (ii) settle the claim or suit; or (iii) modify the Service to make it non-infringing; or (iv) terminate this Agreement, provided upon such termination it shall refund to the Customer the unused portion of fees paid for the then current Subscription Term (determined on a pro rata basis).  Any election by PreparedEx under this Section 8(e) shall fully discharge and satisfy any and all claims by the Customer hereunder other than the right to indemnification under Section 8(a) with respect to use of the Product prior to such termination.

(f)        ENTIRE LIABILITY.  THIS SECTION 8 STATES THE ENTIRE LIABILITY OF PREPAREDEX WITH RESPECT TO INFRINGEMENT OF PATENTS, TRADEMARKS, TRADE SECRETS, COPYRIGHTS AND OTHER PROPRIETARY RIGHTS BY THE PRODUCT, ANY PARTS THEREOF OR ANY RELATED DOCUMENTATION OR MATERIALS, AND PREPAREDEX SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT OR MISAPPROPRIATION.

  1. EXCEPTIONS TO WARRANTY AND INDEMNIFICATION OBLIGATIONS; LIMITATIONS OF LIABILITY.

(a)        Exceptions.  PreparedEx shall have no liability to Customer (or any other person) to the extent that any warranty claim, claim of infringement, or other breach of this Agreement is based upon: (i) use of the Service in connection or in combination with equipment, devices, or software not provided by PreparedEx (except where such other equipment, devices, or software is required by PreparedEx for the use of the Service, and such other equipment, devices, or software does not infringe in the absence of the combination with the Service); or (iii) access to the Service in breach of this Agreement.  PreparedEx shall have no liability to Customer (or any other person) to the extent that any alleged infringement or claim of infringement is based upon specifications or modifications requested by Customer.

(b)        Limitation of Liability.  REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, (i) IN NO EVENT WILL PREPAREDEX OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PRODUCT OR SERVICE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, EVEN IF SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) PREPAREDEX’S AGGREGATE LIABILITY FOR ALL CASES AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY RECEIVED BY PREPAREDEX FROM CUSTOMER UNDER THIS AGREEMENT IN THE FIRST TWELVE (12) MONTHS      FOLLOWING THE EFFECTIVE DATE.

  1. RESTRICTIONS ON USE.

(a)        Customer agrees to provide true, accurate, current and complete information about Customer as prompted by the subscription form, contribution form and any registration form. If any information provided by Customer is untrue, inaccurate, not current or incomplete, PreparedEx reserves the right to terminate Customer’s subscription and refuse Customer any and all current or future use of the Services.

(b)        Customer Agrees not to use the Web Site or Services to upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any information, data, text, music, sound, photographs, graphics, video, messages or other materials, including any Contribution, (collectively, “Content”), that: is  unlawful, harmful, threatening, embarrassing, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, contains explicit or graphic descriptions or accounts of sexual acts, invasive of another’s privacy; victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; upload, post, publish, e-mail, reproduce, distribute or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; is unsolicited or unauthorized advertising, promotional materials, “junk mail,” “Spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; contains software viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or any other similarly destructive activity, or surreptitiously intercept or expropriate any system, data or personal information;

(c)        Customer further agrees not to use the Web Site or Services to: harm minors in any way; impersonate any person or entity, including, but not limited to, a PreparedEx official, or falsely state or otherwise misrepresent your affiliation with a person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted to or through the Web Site; negatively affects other users’ ability to engage in the Web Site or Services; interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or intentionally or unintentionally violate any applicable local, state, national or international law.

(d)       PreparedEx is not responsible for material submitted to the Service or posted to the Web Site by users. PreparedEx does not pre-screen, monitor, review or edit the Content posted by users. However, PreparedEx and its designees have the right (but not the obligation) at their sole discretion to refuse or remove any Content, in whole or part, that, in PreparedEx’s judgment, does not comply with this Agreement or is otherwise undesirable, inappropriate or inaccurate. PreparedEx is not responsible for any failure, non-failure or delay in removing such Content. Customer will remain responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of such submitted material, including any Contribution or part thereof, or other communication to PreparedEx.  Customer agrees to immediately notify PreparedEx of any unauthorized use of the Service or any other breach of security known or suspected by Customer.

(e)        If Customer breaches this Agreement by sending unsolicited bulk email, or any other bulk communications to users, Customer’s actions will cause harm to PreparedEx and the Service, which harm is difficult to quantify; accordingly, as liquidated damages and not as a penalty, Customer agrees to pay PreparedEx $50 for each individual email or message included in any improper bulk email or similar communication.

  1. DEFINITIONS. As used in this Agreement:

“Accept” or “Accepting” this Agreement means Customer entering into this Agreement by clicking the “ACCEPT” button below.

“Confidential Information” means any proprietary information which is learned by one party about the other’s business affairs, property, methods of operation, processing systems or other information which reasonably could be considered to have business or proprietary value or to be personal or otherwise confidential in nature, and the terms of this Agreement.  PreparedEx’s Confidential Information shall include, without limitation, the Product, the Service and the Documentation.

“Customer Users” means those authorized employees, independent contractors, suppliers, and customers of Customer who are given access to the Service in accordance with the Service Schedule, but only to the extent such parties are using the Service as permitted by Customer hereunder.

“Documentation” means the written documentation accompanying the Service provided to Customer.

“Effective Date” means the date this Agreement is first accepted by Customer.

“Enhancement Services” means additional services which are generally described at https://preparedex.net/services/, as may be revised by PreparedEx in its sole discretion from time to time.

“Product” means PreparedEx’s LaunchPAD Exercise Delivery Platform, which is the software used by PreparedEx to provide the Service to Customer pursuant to this Agreement.

“Schedule” means a Service Schedule or Service Level Agreement as attached hereto or entered into hereafter in accordance with Section 12(g).

“Service” means the services (described as such in the Service Schedule) provided to Customer pursuant to this Agreement where PreparedEx hosts a customized version of the Product for Customer and makes that version available to Customer Users as a service over a network.

“Service Level Agreement” means the means the Service Level Agreement attached hereto as Exhibit B.

“Subscription Term” is defined in Exhibit A.

“Web Site” means https://preparedex.net.

  1. GENERAL.

(a)        Notices.  Except as otherwise required by this Agreement, all notices, demands, requests or other communications that may be or are required to be given, served or sent by any party pursuant to this Agreement will be in writing, will reference this Agreement and shall be mailed by registered or certified mail, return receipt requested, postage prepaid, or sent by hand delivery, addressed as indicated below the signatures of the parties.  Facsimile and email notices shall not be sufficient.  Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent.  Each notice that is mailed, delivered or sent in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt or the affidavit of messenger being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.

(b)        Export Control.  Customer agrees that it will not ship, transfer or export the Product into any country or use the Product in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.

(c)        Entire Agreement; Amendment.  This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or verbal communications or representations regarding its subject matter.  This Agreement, as well as the pricing, plans and features of the Service, may be amended by PreparedEx unilaterally, at any time, by posting such changes on the Web Site; provided, that subscription and service fees may only be amended (i) prospectively, for future renewal periods, by PreparedEx as provided above, or (ii) by written instrument signed by the parties.

(d)       Assignment and Sublicense.  This Agreement and any license granted hereunder do not include the right to sublicense and Customer may not transfer or assign, by operation of law or otherwise, this Agreement or any license without the prior written consent of PreparedEx.  Any attempted assignment in derogation hereof shall be null and void.

(e)        Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. The parties agree to exclusive personal jurisdiction and venue of the United States District Court for the District of Massachusetts (and any Massachusetts State court within that District) for that purpose.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

(f)        Independent Contractors.  In making and performing this Agreement, PreparedEx and Customer shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, joint venture, or employer and employee relationship between PreparedEx and Customer.

(g)        Contract Administration; Changes.  The initial Schedule(s) agreed to by the parties are set forth as attachments to this Agreement.  Additional Schedules, regardless of whether they relate to the same subject matter as the initial Schedule(s), shall become effective upon acceptance by both parties (either in writing or by “click wrap” acceptance).
EXHIBIT A - SERVICE SCHEDULE

Basic Services:

Bronze Service Package          $4,740/year

Silver Service Package            $10,740/year

Gold Service Package             $23,900/year

Special Provisions for Gold Accounts.  PreparedEx provides Gold Service Package Customers a content development process for the creation of scenarios and Enhancement Services. This process includes a “sign-off” requirement where Customer approves the content prior to the development of any videos, audio, imagery, text or other related material. The sign-off will be confirmed via email prior to the development of the final product(s).  The approved content will generally be incorporated into a completed scenario by PreparedEx within 60 days after receiving the annual subscription payment and the initial scenario planning discussion between PreparedEx and Customer.

Partial refunds of annual subscription fees shall be paid with respect to terminations of Gold Service Packages as follows:

termination not later than 60 days after commencement – 50% refund

termination more than 60 days after commencement –0% refund

Subscription Term.

Initial Subscription Term:  One year from the Effective Date.

Renewal Subscription Terms: Annually renewable on successive anniversaries of the Effective Date.

Additional Enhancement Service Fees:  In addition to the annual subscription fee(s), PreparedEx offers a number of Enhancement Services that are detailed at:

https://preparedex.net/services/

as may be revised by PreparedEx in its sole discretion from time to time.  If Customer requires additional Enhancement Services, PreparedEx will bill client at the rates described in the “Services” section of the Web Site. Payments will be required prior to the commencement of any Enhancement Services.

Additional Users and Scenario Space:  Customer may purchase the right to add Customer Users, and additional scenario space, at the rates identified at:

https://preparedex.net/services/

as may be revised by PreparedEx in its sole discretion from time to time.  Payments for additional Customer Users and scenario space are required prior to implementation.

EXHIBIT B

SERVICE LEVEL AGREEMENT

PreparedEx warrants that the Web Site will be accessible not less than 99% of the time, determined on a 24/7 basis; provided, that Standard Exclusions are outside the scope of this guarantee (and don’t count toward time during which the Web Site is inaccessible).

As Customer’s sole remedy, and as PreparedEx’s sole liability, for breach of this warranty, Customer’s then-current Subscription Term shall be extended for ten times the amount of time by which the warranty was breached; provided, that Customer notifies PreparedEx of any breach within five business days of the incident in question; provided further, that the aggregate amount of time which the then-current Subscription Term can be extended for all breaches of this warranty during the Subscription Term is 30 days.  For example, 99% of the hours in a thirty day month would be 712.8 hours.  If the service were accessible for only 692.8 hours in a month (20 hours less than promised), Customer’s then-current Subscription Term would be extended for 200 hours (8.33 days).

“Standard Exclusions” means:  scheduled network maintenance (PreparedEx will provide prior notification of upcoming maintenance); hardware maintenance; software maintenance; malicious attacks, such as “denial of service” or other form of disabling attack against relevant servers or the network; and down-time required by compliance with a court order or other governmental law, regulation or action.

 

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