Software Subscription Terms Of Service
Last Updated: July 14, 2022
Please read these Preset Software Subscription Terms of Service (this “Agreement”) carefully, as it governs the use of the Preset Services (defined below) by you and/or the entity that you are acting on behalf of (as applicable) in registering for the Preset Services (“Customer”).
This Agreement takes effect on the date when you COMPLETE THE REGISTRATION TO USE THE PRESET SERVICES or also on the date that you first access or use the Preset Services (whichever comes first, the “Effective Date”). IF YOU ARE REGISTERING TO USE THE PRESET SERVICES ON BEHALF OF AN ENTITY, you, as the individual registering for the Preset Services on behalf of SUCH ENTITY: (a) acknowledge that you have read and understand this Agreement; (b) represent and warrant that you have the right, power, and authority to enter into this Agreement and have legal authority to bind SUCH ENTITY; and (c) accept this Agreement on behalf of SUCH ENTITY and agree that SUCH ENTITY is legally bound by its terms.
If you do not agree to this Agreement, please DO NOT COMPLETE THE REGISTRATION TO USE the PRESET SERVICES, and in such event neither you nor any individual on behalf of Customer may access or use the Preset Services. This Agreement is by and between Preset, Inc. (“Preset”) and Customer (as defined above). This Agreement includes and incorporates any exhibits attached hereto as well as the online registration form accepted pursuant to this Agreement. Preset and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
1. DEFINITIONS.
“Customer Materials” means all information, data, content and other materials, in any form or medium, that is transmitted or otherwise provided by or on behalf of Customer through the Preset Services or to Preset in connection with Customer’s use of the Preset Services, but excluding, for clarity, Service Information and any other Preset IP.
“Documentation” means the operator, user, and technical manuals and documentation.
"Embedded Dashboard” is an add-on product available to subscribers to Preset Services, which enables Customers to create their own dashboard to embed in their network/system, behind their firewall, which can be configured and controlled by the Customer, and which still benefits fully from the Preset Services.
“Preset IP” means the Preset Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Preset Services and Documentation and Service Information (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.
“Preset Services” means Preset’s software-as-a-service business intelligence and data visualization application, as more particularly described at preset.io. Preset Services also include Embedded Dashboard unless otherwise indicated.
“Registration” means Customer’s online registration to use the Preset Services, via Preset’s website or other application.
“Use” means to use and access the Preset Services in accordance with this Agreement and the Documentation.
2. PRESET SERVICES.
(a) Right to Use. Subject to Customer’s compliance with the terms and conditions of this Agreement, Preset hereby grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 11(a)) right to Use the Preset Services during the applicable Term (and to use Embedded Dashboard if Customer has purchased this add-on product in an order form). Preset reserves and, as between the Parties will solely own, the Preset IP and all right , title and interest in and to the Preset IP, including all modifications of and derivative works of the Preset IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(b) Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users as defined below) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Preset Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Preset Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Preset Services to any other person or entity, or otherwise allow any person or entity to use the Preset Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Preset Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; (v) access or search the Preset Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Preset Services features provided by Preset for use expressly for such purposes; or (vi) use the Preset Services, Documentation or any other Preset Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Preset Services.
(c) Right to Remove Customer Materials/Content. If any content contained in your Customer Materials (i) violates this Agreement or any linked Preset policies; (ii) violates or may violate applicable law; (iii) is offensive or Preset deems it to be offensive, for example, if it appears to be child pornography, harassment, defamatory and/or threatening or puts anyone at risk, possible terrorist content, or may infringe a third party’s intellectual property rights, Preset has the right to remove such Customer Materials/content, and for egregious or recurring conduct of this nature, to suspend or terminate Customer’s account.
(d) Authorized Users. If Customer is an individual, then Customer will not allow any other person or entity to use the Preset Services. If Customer is an entity, Customer will not allow any person or entity other than its employees or contractors that it authorizes to use the Preset Services on its behalf (“Authorized Users”) and Customer may permit Authorized Users to Use the Preset Services, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Preset Services and their compliance with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 2(b). Basically, you are responsible for all activities under your Authorized Users’ accounts, and Customer should ensure that Authorized Users keep their accounts secure. Authorized Users must not access or use them in fraudulent or deceptive ways, introduce malware, or engage in spamming, hacking or attempt to bypass our systems or protective measures.
3. REGISTRATION AND FEES.
(a) Registration and Subscription. Registration includes multiple options for tiers of the Preset Services (each, a “Subscription Tier”), which include different features, functionality and fees. Embedded Dashboard may have its own Subscription Tiers based on number of viewers or other criterion specified by Preset. Customer may change its Subscription Tier at any time through the Preset Services, in which case the applicable Fees (defined below) and billing frequency for such Subscription Tier will take effect upon the time of such change. If a Customer changes from a free Subscription Tier to a paid Subscription Tier that includes a temporary free trial, the Fees will apply to the applicable paid Subscription Tier upon the end of such free trial, unless Customer cancels its subscription prior to the end of such free trial. Section 3(e) below sets forth additional terms that apply to free trials.
(b) Fees. Customer will pay Preset the fees based on the Subscription Tier, the subscription term and number of Authorized Users (or other criteria indicated on the applicable order form for the particular Preset service or product subscribed to) selected by Customer during Registration or within the Preset Services (“Fees”) in advance based on the billing frequency (e.g., monthly or annually) applicable to Customer’s subscription, and without offset or deduction. Preset will charge Customer’s selected payment method (e.g., credit card or debit card) for any Fees on the applicable payment date, including any applicable taxes. Preset may calculate taxes payable by you (including sales, use or value-added taxes, if applicable) based on the billing information you provide to Preset during Registration. Customer is responsible for all currency exchange settlements or related expenses applicable to Customer’s payment of the Fees, if applicable. If Preset cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Preset will attempt to charge the payment method again as Customer may update its payment method information. Without limiting Preset’s other rights and remedies, Preset may suspend Customer’s Use of the Preset Services if any Fees are overdue. For the avoidance of doubt, Customer is responsible for all Fees and expenses to enable Customer’s access to the Preset Services, including internet and data charges.
(c) Changes to Fees. Preset may change the Fees for the Preset Services at any time by providing notice to Customer through the Preset Services and/or by email. Any change to the Fees will automatically become effective after the duration of Customer’s then-current subscription term, unless Customer cancels its subscription prior to renewal pursuant to Section 7 below. For example, if the Customer has registered for a monthly a monthly subscription, or an annual subscription paid monthly, the updated Fees will become applicable after the completion of the then-current subscription month and if Customer has registered for an annual subscription paid annually in advance, the updated Fees will become applicable after the completion of the then-current subscription year.
(d) Additional Users. Customer may choose the number of Authorized Users applicable to its subscription during Registration or within the Preset Services (or in the case of Embedded Dashboard, the desired Tier of viewers or other criterion specified by Preset). For each additional Authorized User that Customer invites to Use the Preset Services under Customer’s subscription (or other specified metric), the Fees will be automatically increased based on the per-user Fees agreed upon at Registration or set forth within the Preset Services or applicable order form. The increased Fees for additional Authorized Users will be effective beginning at the time that Authorized User invited by Customer accepts the invitation to Use the Preset Services (or when another applicable metric is exceeded, such as the applicable viewer Tier for Embedded Dashboard).
(e) Free Trial or Subscription. Preset may make the Preset Services available to you free of charge, for example as a temporary free trial or pursuant to a free Subscription Tier. Additional terms and conditions may appear during Registration that are applicable to free trials or a free Subscription Tier. These additional terms and conditions may include automatic renewal terms, where Customer agrees that its free trial will automatically renew into a paid Subscription Tier absent non-renewal by Customer. Any additional terms and conditions agreed upon in the Registration are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ANY PRESET SERVICES PROVIDED PURSUANT TO A FREE TRIAL OR FREE SUBSCRIPTION TIER ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED.
4. CUSTOMER MATERIALS.
As between Customer and Preset, Customer owns and retains all right, title and interest in and to all Customer Materials. Preset may use, display and modify the Customer Materials solely to provide and improve the Preset Services during the Term (as defined below), including to store the Customer Materials in temporary caches. In addition, Preset may develop or derive data or insights in deidentified form from (a) any Customer Materials; or (b) Customer’s and/or its Authorized Users’ use of the Preset Services, including, without limitation, any usage data or trends with respect to the Preset Services (“Service Information”).
5. PERSONAL INFORMATION.
Preset and Customer agree to the terms set forth on Exhibit A regarding the processing of Personal Information (defined below), if applicable.
6. REPRESENTATIONS AND WARRANTIES.
(a) Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents, if applicable, or conflict with any other obligations or agreements binding upon such Party.
(b) Customer represents and warrants that (i) Preset’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligation between Customer and any third party and (ii) Customer will not input into the Preset Services or otherwise provide to Preset any data that would subject to Preset to additional legal compliance obligations (including under the Health Insurance Portability and Accountability Act (HIPAA) or the Gramm-Leach-Bliley Act) or other data that would constitute sensitive Personal Information (as defined in Exhibit A) or violate the privacy rights of any data subject under applicable law.
7. TERM; TERMINATION.
(a) Term and Termination. The term of this Agreement begins on the Effective Date and remains in full force and effect for the period set forth in the Registration, and, unless earlier terminated as permitted herein, will automatically renew for additional periods based on the duration agreed upon in the Registration (collectively, the “Term”). Customer may terminate this Agreement at any time by requesting cancellation via email to cancel@preset.io or, if available, by canceling its subscription to the Preset Services through the Preset website or other application. No refund of any prepaid amounts will be due to Customer in the event of such termination. In addition, Preset may suspend or terminate Customer’s subscription to the Preset Services at any time.
(b) Effect of Termination. Upon expiration or termination of this Agreement: (i) neither Party will make any further use of Confidential Information belonging to the other Party, and will promptly return to the other Party (or destroy) all Confidential Information of the other Party in its possession or control, except for any archived electronic communications which may be stored confidentially, (ii) Customer’s and its Authorized Users’ rights to Use the Preset Services pursuant to the Registration will immediately terminate; and (iii) all Fees owed by Customer to Preset will be immediately due and payable.
(c) Survival. The rights and obligations of Preset and Customer contained in Sections 3, 4, 7, 8, 9, 10 and 11 will survive any expiration or termination of this Agreement.
8. CONFIDENTIALITY.
(a) Confidentiality. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Preset Services and the Documentation will be deemed Confidential Information of Preset. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Preset may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Service Information. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party, which is evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
9. DISCLAIMER; LIMITATION OF LIABILITY.
(a) Disclaimer. THE PRESET SERVICES AND ALL PRESET IP ARE PROVIDED ON AN “AS IS” BASIS, AND PRESET MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE PRESET IP, THE PRESET SERVICES OR ANY OTHER SERVICES, PRODUCTS OR MATERIALS PROVIDED HEREUNDER.
(b) Limitation of Liability. PRESET WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR FOR BUSINESS INTERRUPTION, OR FOR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL PRESET’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) AND (B) THE FEES ACTUALLY PAID BY CUSTOMER TO PRESET IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. INDEMNIFICATION.
(a) Indemnification by Preset. Subject to Section 10(b), Preset will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s Use of the Preset Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer in a final non-appealable judgment or agreed in settlement by Preset resulting from such Claim (including reasonable attorneys’ fees).
(b) Exclusions. Preset’s obligations under Section 10(a) will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Preset Services that have been provided by Preset; (iv) modifications to the Preset Services by anyone other than Preset; or (v) combinations of the Preset Services with software, data or materials not provided by Preset.
(c) Indemnification by Customer. Customer will defend, indemnify and hold harmless Preset from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded against Preset, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Preset that: (i) the Customer Materials or their use by Preset in accordance with this Agreement infringe, misappropriate or violate a third-party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the Preset Services or Documentation to the extent such use was not in accordance with this Agreement; (iii) is based on the manufacture, sale, distribution or marketing of any Customer’s products or services; (iv) is based on the violation by Customer of any data subject’s privacy rights under applicable law, or (v) is based on a breach of Section 2(b) by Customer.
(d) Each party’s obligations under this Section 10 are contingent upon: (i) the Party seeking defense and indemnity (the “Indemnified Party”) providing the other Party (the “Indemnifying Party”) with prompt written notice of such Claim (but in any event notice in sufficient time for the Indemnifying Party to respond without prejudice to the Indemnifying Party); (ii) the Indemnifying Party having the exclusive right to defend or settle such Claim; and (iii) the Indemnified Party providing all reasonably necessary cooperation to the Indemnifying Party, at the Indemnifying Party’s expense, in the defense and settlement of such Claim. The Indemnified Party may participate in the defense of any Claim at its own expense.
11. MISCELLANEOUS.
(a) Assignment. Neither Party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except that no such consent shall be necessary for assignment or transfer to a successor entity in the event of an acquisition, merger, reorganization, consolidation or sale of all or substantially all of the assets of such Party. Any attempt by either Party to assign, transfer or sublicense in violation of the previous sentence will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(b) Publicity. Customer hereby grants Preset a limited, non-exclusive, royalty-free right and license to use Customer’s name, trademark and logo (“Customer Marks”) in connection with Preset’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Preset on its website and elsewhere, and in connection with case studies. All goodwill generated by Preset’s use of Customer Marks inures to the exclusive benefit of Customer.
(c) Export Rules. Customer will fully comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Preset Services or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
(d) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Entire Agreement. This Agreement, including any exhibits and the Registration, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.
(f) Modification. Preset may modify this Agreement at any time by providing notice to Customer through the Preset Services or by email. Customer will be deemed to have agreed to the terms of the updated Agreement if Customer either (a) accepts the updated Agreement through the Preset Services or (b) uses or accesses the Preset Services after such notice.
(g) Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
(h) Waiver; Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(i) Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal courts located in the Northern District of California and state courts of competent jurisdiction located in San Jose, San Mateo, Redwood City or San Francisco, and the Parties irrevocably consent to the personal jurisdiction and venue therein.
EXHIBIT A
PERSONAL INFORMATION
To the extent Preset processes any Customer Materials relating to an identified or identifiable natural person (“Personal Information”) that is subject to the General Data Protection Regulation (Regulation (EU) 2016/679) and its respective national implementing legislations (“GDPR”); the Swiss Federal Act on Data Protection; the United Kingdom General Data Protection Regulation; and/or the United Kingdom Data Protection Act 2018 (collectively, “Data Protection Laws”), Preset will:
(a) only process Personal Information as contemplated by this Agreement;
(b) ensure that Preset’s personnel authorized to process Personal Information have committed themselves to confidentiality;
(c) implement commercially reasonable technical and organizational measures designed to protect Personal Information. If Preset becomes aware of any unauthorized access, use, or disclosure of Personal Information, it will notify Customer without undue delay. Where possible, such notice will include all available details required under applicable data protection laws for Customer to comply with its own notification obligations to regulatory authorities and affected individuals;
(d) only engage sub-processors to process Personal Information where Preset has entered into a written agreement with such sub-processors imposing data protection obligations that are consistent with this Exhibit. Where the sub-processor fails to fulfill such obligations, Preset shall remain fully liable to Customer for the performance of that sub-processor’s obligations in accordance with applicable data protection laws. A list of Preset’s sub-processors can be found at https://preset.io/Preset-Sub-Processors.pdf. Where required by Data Protection Laws, Preset will update such list of sub-processors and allow Customer five (5) days to object. If Customer has legitimate objections to the appointment of any new sub-processor, the Parties will work together in good faith to resolve the grounds for the objection;
(e) provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Personal Information under applicable data protection laws;
(f) assist Customer in ensuring compliance with Customer’s obligations pursuant to Articles 35 and 36 of GDPR (or equivalent requirements under other applicable Data Protection Laws);
(g) delete or return all Personal Information following the expiration or termination of this Agreement upon request (excluding any back-up or archival copies which shall be deleted in accordance with Preset’s data retention schedule), except where Preset is required to retain copies under applicable laws, in which case Preset will isolate and protect that Personal Information from any further processing except to the extent required by applicable laws;
(h) make available to Customer all information necessary to demonstrate compliance with the obligations set forth in this Exhibit A and allow for and contribute to audits, conducted by Customer or another auditor mandated by Customer by providing Customer with an overview of Preset’s security practices that Preset generally makes available to its customers;
(i) ensure that any Personal Information originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred by Customer to Preset in a country that has not been found to provide an adequate level of protection under applicable data protection laws is processed in accordance with the standard contractual clauses, in compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country, and in particular in accordance with Module 2 (Controller to Processor), the terms of which are incorporated herein by this reference.