Terms of Service
Effective as of June 14, 2018
1. Acceptance of Terms.
1. The Terms of Service (the “TOS”) is an agreement you must accept in order to use the Service (as defined below). The TOS describes both your rights and your obligations as part of using the Service. It is important that you read the TOS carefully because you will be legally bound by it. Presen Technologies, Inc. (“Presen,” “we,” “us”) only provides the Service to you subject to the TOS. By accepting the TOS or by accessing or using the Service, you agree to be bound by the TOS(including the **[PRIVACY STATEMENT](/about/privacy_statement)**, which is incorporated here by reference).
2. If you are entering into the TOS on behalf of a company or other legal entity, you represent that youhave the authority to bind such entity to the TOS. In that case, the terms “you” or “your” shall alsorefer to such entity. If you do not have such authority, or if you do not agree with the TOS, you may not use the Service. You acknowledge that the TOS is a binding legal contract between you and Presen, eventhough it is electronic and is not physically signed by you and Presen, and it governs your use of theService.
3. We may change the TOS as the Service evolves. If we make a material change to the TOS, we will provide you with reasonable notice prior to the changes by sending an email to the email address associated with your account, by posting a notice on this website, or via an in-product notification.You can review the most current version of the TOS at any time by visiting this page. The revised termsand conditions of the TOS will become effective on the date you accept the terms or on the date setforth in our notice. By accepting the revised terms and conditions or by accessing or using the Service after the effective date, you agree to be bound by the revised terms and conditions of the TOS. If any change to the TOS is not acceptable to you, you must terminate your account through and stop using the Service.
4. As part of the registration process, you will identify a user name and password for your account. You are responsible for maintaining the confidentiality of your user name, password, and account and for all activities that occur under your login or account. You are also responsible for the accuracy of such information and keeping it up to date.
5. By accessing or using the Service, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fullyable and competent to enter into and comply with the terms and conditions in the TOS. The Service is not directed to children under 13, so if you are under 13 years of age, you are not permitted to access or use the Service. If we become aware that you are using the Service even though you are under 13, we will terminate your account.
2. Description of Service.
1. The “Service” means:
1. Presen’s data computation and storage services
2. all software (including the Software, as defined below), applications (including mobileapplications), data, text, images, and other content made available by or on behalf of Presen throughany of the foregoing.
2. The Service does not include Your Data (as defined below) or any software application or service that is provided by you or a third party, which you use in connection with the Service (each a“Non-Presen Product”).
3. Any modifications and new features added to the Service are also subject to the TOS. Presen reserves the right to modify or discontinue the Service, any portion thereof, or any feature or functionality thereof, as described in Section 9.c below.
4. All rights, title, and interest in and to the Service and its components (including allintellectual property rights) will remain with and belong exclusively to Presen.
3. Access and Use of the Service.
1. You may access and use the Service only for lawful, authorized purposes and you shall not misuse orabuse the Service in any manner (as determined by Presen in its sole and absolute discretion). See Section 6 for specific provisions and examples outlining prohibited uses of the Service. You shall comply with any codes of conduct, policies, storage limitations, or other notices Presen provides you or publishes in connection with the Service from time to time, but if any of those policies materially change the TOS, we will provide you with reasonable notice as provided in Section 1.c above.You shall promptly notify Presen at **email@example.com** if you learn of a security breach related to the Service.
2. Any software that may be made available by or on behalf of Presen in connection with the Service,including Presen’s web, mobile, and desktop applications, (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subjectto the terms and conditions of the TOS, Presen only grants you a personal, non-sublicensable, and non-exclusive license to use the Software solely in connection with the Service. Any rights not expressly granted herein are reserved.
3. The Service may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
4. Your Data Rights and Related Responsibilities.
1. "Your Data" means any data and content you upload, post, store, transmit, or otherwise make available via the Service (which may include data you elect to import from Non-Presen Products youuse). Your Data includes files you upload, comments you make on files, profile information, and anything else you enter or upload into the Service. Presen will make commercially reasonable efforts to ensure that all facilities used to store and process Your Data meet a high standard for security.
2. In order for us to provide the Service to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store, and copy Your Data in order to display it to you, to index it so you are able to search it, to make backups to prevent data loss,and so on. Your acceptance of the TOS gives us the permission to do so and grants us any such rights necessary to provide the Service to you, only for the purpose of providing the Service (and forno other purpose). This permission includes allowing us to use third-party service providers in the operation and administration of the Service and the rights granted to us are extended to these thirdparties to the degree necessary in order for the Service to be provided.
3. If you send us any feedback or suggestions regarding the Service, Presen may use any such feedback or suggestions for any purpose without any obligation to you.
4. You are solely responsible for your conduct, the content of Your Data, and all communications with others while using the Service. We may choose to review Your Data for compliance with our policies and guidelines, but you acknowledge that Presen has no obligation to monitor any information on the Service.
5. Presen may remove or disable any of Your Data, or terminate your account, at any time if we believe, in our sole discretion, that you are in violation of the TOS.
6. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other data shared with you or that you are otherwise able to access using the Service. The Service provides features that allow you to share Your Data and other materials with others or to make it public.Please consider carefully what you allow to be shared or made public.
5. Free Accounts and Paid Accounts. Once your account exceeds the amount of free storage provided, you must convert your account to a paid account. Paid accounts are charged, in advance, on each periodic renewal until termination. You are responsible for any taxes, duties, and levies (e.g., sales tax, usetax, VAT, and GST) applicable to the Service. Charges are in United States Dollars and are not subject to refund (even if the Service is terminated by you). Prices are subject to change by us.
If Your Data exceeds the free storage limit and we do not have a credit card or other payment mechanism assigned to your account, we will notify you and you will be required to provide a credit card before continuing to use the Service. If your account exceeds the free storage limit and you do not provide a credit card, your account will be disabled. To re-enable your account, you must convert to a paid account (by providing yourcredit card) or delete some of Your Data to return within the free storage limit (by contacting **firstname.lastname@example.org**).
We reserve the right to delete Your Data, in whole or in part, at any time Your Data exceeds the free storage limit and you have not converted to a paid account.
6. Representations and Warranties.
1. You represent and warrant to Presen that:
1. you have full right and authority to enter into the TOS;
2. you own all Your Data or have obtained all permissions, releases, rights, or licenses required to engage in your activities (and allow Presen to perform its obligations) in connection with the Service without obtaining any further releases or consents;
3. Your Data and your other activities in connection with the Service, and Presen’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right;
4. Your Data does not contain any matter that is unlawful; and
5. none of Your Data that you share or otherwise make available to others through your use of the Service is defamatory, obscene, threatening, abusive, tortious, offensive, orharassing.
2. You also agree not to:
1. share, post, transmit, or otherwise make available to others any of Your Data that is threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hate speech, racially or ethnically offensive, or otherwise objectionable;
2. use the Service to harm others, including minors, in any way;
3. impersonate any person or entity, including, but not limited to, a Presen employee, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4. manipulate identifiers in order to disguise the origin of any of Your Data;
5. share, post, transmit, or otherwise make available to others any of Your Data that you do nothave a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part ofemployment relationships or under nondisclosure agreements);
6. upload, post, transmit, or otherwise make available any of Your Data in a manner that infringesany patent, trademark, trade secret, copyright, or other proprietary rights of any party;
7. sublicense, resell, rent, lease, transfer, or assign (except as permitted in Section 18) theService or its use, or offer the Service on a time share basis to any third party;
8. use the Service to share, post, transmit, or otherwise make available to others any unsolicitedor unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramidschemes,” or any other form of solicitation;
9. use the Service to upload, post, transmit, or otherwise make available any software viruses orany other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware;
10. act in a manner that negatively affects another user’s ability to use the Service;
11. interfere with or disrupt the Service or servers or networks connected to the Service, ordisobey any requirements, procedures, policies, or regulations of networks connected to the Service, including using any device or software;
12. modify, adapt, or hack the Service, including by using any Presen APIs except through the applications and web pages that we provide, or otherwise attempt to gain unauthorized access tothe Service or its related systems or networks;
13. intentionally or unintentionally violate any applicable local, state, national, or international law in connection with your use of the Service, including, but not limited to, any data privacy orexport or import control laws, any regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation,the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulationshaving the force of law;
14. use the Service to provide material support or resources (or to conceal or disguise the nature,location, source, or ownership of material support or resources) to any organization(s) designatedby the United States government as a foreign terrorist organization pursuant to Section 219 of theImmigration and Nationality Act;
15. use the Service to “stalk” or otherwise harass another;
16. collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above; or
17. misuse or abuse the Service in any manner (as determined by Presen in its sole and absolute discretion), including, but not limited to, storing an unreasonable quantity of files or amount ofdata during any free trial period, putting an unreasonable load on any service running in any Presendata center, posting an unreasonable amount of comments or comments of unreasonable length, or manipulating or abusing Presen’s signup process to receive more than one free trial period.
7. Public Content. You acknowledge that Presen and its designees shall have the right (but not theobligation) in their sole discretion to pre-screen, refuse, or remove any of Your Data that is available as publicly visible content (“Public Content”) via the Service. For example, we may choose to review Public Content posted using the “Get Public Link” feature or other mechanism for sharing content outsideof your non-public channels for compliance with our policies and guidelines. If, for instance, you upload files that do not belong to you and make these files available publicly, we can delete or unshare those files. We may also review Your Data that is not Public Content as we deem appropriate in compliance withour **[PRIVACY STATEMENT](/about/privacy_statement)**. Without limiting the foregoing, Presen and its designees shall have the right to remove any of Your Data that violates the TOS or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of Your Data, including any reliance on the accuracy, completeness, or usefulness of Your Data.
8. Access to Your Account and Your Data. You acknowledge, consent, and agree that Presen may access,preserve, and disclose your account information and Your Data if required to do so by law or in a goodfaith belief that such access, preservation, or disclosure is reasonably necessary to:
1. comply with legal process;
2. enforce the TOS;
3. respond to claims that any of Your Data violates the rights of third parties;
4. respond to your requests for customer service; or
5. protect the rights, property, or personal safety of Presen, its users, or the public.
9. Term; Termination.
1. The TOS will continue in full effect, as amended, unless and until your account or the TOS is terminated as described herein.
2. You may terminate your account through an email to **email@example.com**. Termination of an account irrevocably deletes your profile and content, including content that you have shared with others or made public. If other users have copied your shared content into their own accounts or out of our Service, those copies will not be deleted. Your Data may remain on our Service for a period of time after we process your termination request and may remain in our backups beyond that time.
3. We reserve the right to modify or terminate the Service, or any portion thereof, at any time, forany reason, with or without notice. Upon any termination of the Service, we have no obligation tomaintain or provide Your Data; however, we intend to take commercially reasonable efforts to give you reasonable advance notice of such termination and to provide you with the capability to download YourData for a reasonable period of time after any such termination.
4. If your account is terminated for any reason, we have no obligation to refund any amounts you have paid us.
5. Please see our **[PRIVACYSTATEMENT](/about/privacy_statement)** for more information about the choices you have regarding Your Data.
10. Disclaimer of Warranties.
1. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, but Presen shall use commercially reasonable efforts to provide advance notice of any material scheduled service disruption. Presen will have no liability to you for any unauthorized access or use of any of Your Data,or any corruption, deletion, destruction, or loss of any of Your Data.
2. THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “ASAVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Presen EXPRESSLY DISCLAIMS ANY AND ALLWARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OFMERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THATPresen DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE,NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NOINFORMATION OR ADVICE OBTAINED BY YOU FROM Presen OR THROUGH THE SERVICE SHALL CREATE ANYWARRANTY NOT EXPRESSLY STATED IN THE TOS.
11. Limitation of Liability.
1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL PresenBE LIABLE TO YOU OR ANY THIRD PARTY FOR:
1. ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDINGLOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA, INCLUDING YOUR DATA;
2. FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6)MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S.DOLLARS; OR
3. ANY MATTER BEYOND OUR REASONABLE CONTROL.
2. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability forincidental or consequential damages, which means that some of the above limitations may not apply toyou. IN THESE JURISDICTIONS, Presen’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BYLAW.
3. THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS UNDER THE TOS BETWEEN THE PARTIES, AND THEPARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE TOS.
12. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, disable or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Presen's Copyright Agent the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has beeninfringed;
3. a description of where the material that you claim is infringing is located on the site;
4. your address, telephone number, and email address;
5. 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
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
13. International Use. Presen makes no representation or warranty that the Service is appropriate for use in your country of use. We may limit the availability of the Service, in whole or in part, to any person,geographic area, or jurisdiction we choose, at any time and in our sole discretion. You acknowledge and agree that some or all of the Service, including the materials contained thereon, may be subject to theU.S. Export Administration Laws and Regulations, the United States Treasury Department’s Office of ForeignAssets Control (“OFAC”) Economic Sanctions Regulations, as well as export laws of other countries, and that diversion of such portions of the Service or materials contrary to U.S. law or the law of other applicable countries is prohibited. You agree that no part of the Service, nor any direct product thereof or materials thereon, will be used for nuclear activities, chemical biological weapons, or missileprojects, unless specifically authorized by the U.S. government (or other relevant government) for such purposes. You acknowledge and agree that no part of the Service, underlying information or technology, or materials thereon may be directly or indirectly downloaded or otherwise exported, re-exported, shipped,transferred, or acquired for/to any countries or regions subject to U.S. trade embargo (or their citizens,nationals, or residents), anyone on the OFAC list of Specially Designated Nationals, or anyone on there stricted or denied party list maintained by the U.S. government or Wassenaar member countries. By using the Service, you agree to the foregoing, and represent and warrant that you are not on any such list and are not a citizen of, located in, customarily resident in, or under the control of a national or resident of any such country/region. You further acknowledge and understand that certain functionality of the Service, such as encryption or authentication, as well as your own materials, files, data, or use may be subject to export or import restrictions and you agree to comply strictly with all export, re-export, and import laws and assume sole responsibility for obtaining licenses to export, re-export, or import as may be required.
14. Indemnification. You shall defend, indemnify, and hold Presen harmless from and against any claims, actions,or demands, including without limitation reasonable legal and accounting fees and costs, arising from orrelating to your breach of the TOS, any of Your Data, or your use or misuse of the Service. Presen shall provide notice to you of any such claim, suit, or demand. Presen reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section 14. In such case, you agree to cooperate with any reasonable requests assisting Presen’s defense of such matters.
15. Enforceability. If any provision of the TOS is found to be unenforceable or invalid, that provision will be interpreted to give the fullest possible effect to its original intent or eliminated to the minimum extent necessary so that the TOS will otherwise remain in full force and effect andenforceable.
16. Integration. The TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and terminates all previous written and oral agreements, communications and other understandings relating to the subject matter of the TOS.
17. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as aresult of the TOS and you do not have any authority of any kind to bind Presen in any respect whatsoever.
18. Assignment. You may not assign the TOS without the prior written consent of Presen, except, if you area company or other legal entity, you may assign the TOS in connection with a merger, re-organization,or acquisition of all or a substantial portion of your assets by another company, but only upon 30-days'prior notice to Presen. Presen may assign or transfer the TOS, in whole or in part, without restriction.
19. Notices. All notices provided by Presen under the TOS, including those regarding modifications to the TOS,will be given by email, by posting on Presen's website, or via an in-product notification.
20. Arbitration; Choice of Law; Venue.
Any controversy, claim, or dispute arising out of orrelated to the TOS (or the interpretation, performance, or breach of it) or the Service (a “Dispute”)shall be settled by mutual consultation between the parties in good faith as promptly as possible, butfailing an amicable settlement, shall be resolved according to the procedures set forth in this Section20. If we are unable to resolve any Dispute through informal means as described above, either party mayinitiate binding arbitration of such Dispute. The arbitration shall be initiated and conducted accordingto the JAMS rules in effect as of the date hereof, including the Optional Appeal Procedure provided for insuch rules (the “Arbitration Rules”). The arbitration shall be conducted in Santa Clara County, Californiabefore a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator is bound by the terms of the TOS. No Disputes may be arbitrated on a class or representative basis. Arbitration can decide only the individual Dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY ENTERING INTO THE TOS, YOUHEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASSACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE TOSMUST BE ASSERTED INDIVIDUALLY. The arbitrator shall not have the power to award punitive damages againstany party. You can decline this agreement to arbitrate by sending an email to **firstname.lastname@example.org** within 30 days of first registering your account with the title“Arbitration Opt-out” and with your name, user name, and mailing address.
The TOS and therelationship between the parties shall be governed by the laws of the State of California without regard to its conflict of laws principles. Subject to the terms of this Section 20, including the arbitration provisions above, any judicial proceeding to resolve a Dispute shall be brought exclusively in the federalor state courts of Santa Clara County, California, U.S.A. Not with standing anything herein to the contrary,nothing herein shall limit the right of Presen to bring proceedings against you in the courts of any other jurisdiction. YOU EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION BETWEEN THE PARTIES.
21. Waiver. The failure of Presen to exercise or enforce any right or provision of the TOS shall not constitutea waiver of such right or provision. The waiver of any such right or provision will be effectiveonly if in writing and signed by a duly authorized representative of Presen.