Software Subscription Terms Of Service
Please read these Preset Cloud 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 Service. ["Customer" or "You"].
This Agreement takes effect on the date when You COMPLETE THE REGISTRATION TO USE THE PRESET SERVICE or on the date when You first access or use the Preset Service (whichever comes first: the "Effective Date"). "Registration" means Customer’s online registration to use the Preset Service via Preset’s website or other application. IF YOU ARE REGISTERING TO USE THE PRESET SERVICE ON BEHALF OF A LEGAL PERSON SUCH AS A COMPANY, ORGANIZATION OR GOVERNMENT AGENCY ["Entity"] you, as the individual registering for the Preset Service 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 be subject to this Agreement, please DO NOT COMPLETE THE REGISTRATION TO USE the PRESET SERVICE, and in such event neither You nor any individual on behalf of Customer may access or use the Preset Service. This Agreement is by and between Preset, Inc. ("Preset") and Customer. This Agreement includes and incorporates any exhibits attached hereto or terms or policies that these Terms link to, as well as the online Registration form accepted pursuant to this Agreement. Preset and Customer may be referred to collectively as the "Parties" or individually as a "Party".
Customer’s authorized Users gain access to the following features of their or their Entity’s subscription to Preset’s software-as-a-service subscription-based business intelligence and data visualization application/service ["Service"] as more fully described at preset.io:
- Preset Manager Multi-instance fully managed Superset (workspaces/team), automatic deployment, upgrades, scalability; features include
- SSO - user authentication, authorization, lifecycle management (i.e., Okta integration)
- RBAC - access control based on team, workspace, and data
- SOC 2 Compliance - 3rd party audited industry standard compliance
- Open-source Apache Superset features
- Multiple Preset Workspaces number of Workspaces included depends on level/tier of Service for which You register; additional workspaces can be purchased from Preset
Additional add-on products/functionality that can be purchased by Customer to use with the Service are listed on the Order Form.
This Agreement applies to your subscription license to Preset’s fully managed, proprietary Apache Superset software ["Software"] which is provided to You as a cloud Service. Use of the Service includes support and maintenance services at no additional cost ["Support"] and any related materials provided by Preset including third-party components and materials ["Materials"]. This Agreement also covers and binds You if You are the only user of the Service, as well as all individual users whom Customer authorizes to use the Service, who shall be named users regardless of license type ["Users"], and who are subject to the restrictions and other terms of this Agreement, and Customer is responsible for the acts and omissions of its Users.
The term "Service" also includes any online Help and other documentation and user guides ["Documentation"], and currently supported upgrades, updates, supplements, enhancements, patches, derivative works and new releases of the Preset Software/Service provided generally to Preset customers at no additional cost ["Enhancements"], third-party materials and components, Internet-based services and Support provided by, for or on behalf of Preset in connection with your use of the Service, as more fully described at https://preset.io/customer-success/preset_service_level_policy.pdf. Any Preset terms and conditions that appear in or on, or accompany, any Preset Software, Materials, items or services also apply and bind Customer in connection with Customer’s use of and access to the Service. Customer acknowledges that from time-to-time at Preset's request, Enhancements will need to be implemented as provided so as not to adversely affect Service development. Updates shall not include any option or future products which Preset licenses separately. If You have subscribed to a free version of the Service, Preset may provide You with Enhancements, but has no obligation to do so.
1. THE BASIC SUBSCRIPTION LICENSE; SUBSCRIPTION TERM.
(a) General Terms. Subject to the terms of this Agreement, Customer’s online Registration and payment of any applicable subscription Fees (as defined below) in the online Order Form, Customer’s Users are hereby granted a limited, nonexclusive, non-transferable and royalty-free right and license to use the Service including any Materials solely during the Trial period or longer Subscription Term (defined below). The basic subscription license to the Service ["Subscription"], except for the Trial Period described in Section 2, is for an initial Subscription term of one (1) year unless otherwise agreed in Customer’s Order Form or online Registration, commencing with the date that this Agreement is accepted by Customer as part of its Registration (unless otherwise indicated in the Order Form). The initial subscription term, and any renewal subscription term, constitute the “Subscription Term.” Use of the Preset Software which Customer’s Users access via the Service is licensed (but not sold to Customer) on a per-User basis during the Subscription Term, and Customer cannot assign or sublicense the Service to third parties. Users have the right to download and use the Service on their computers and devices, provided that all use of the Service is authorized by Customer. Users have no right to give their login credentials to any other person, unless Customer indicates that the User is leaving the Customer’s employ or will not be using the Service again, in which case, Customer shall promptly notify Preset by email of the replacement User, providing such information as Preset requests.
(b) Paid Subscription (“Professional”).
As part of Customer’s Registration, Customer will provide first name, last name, name of Entity if applicable, and (unless paragraphs Section 2 below applies), its billing information. All billing information is processed by Preset’s secure payment processor, not by Preset. Generally Customers are billed and pay annually in advance. Even if the Parties agree in the Online Order Form that Customer will be billed more frequently than annually in advance, Customer is obligated to pay all Fees for the Service for the duration of the Subscription Term. Customer’s Subscription will renew automatically for additional renewal periods of at least one (1) year (or a period equal in length to the initial Subscription Term), unless (a) the Order Form indicates otherwise, or (b) either party informs the other party at least thirty (30) days prior to the end of the then-current initial Subscription Term or renewal Subscription Term that it does not wish to renew such Term for the subsequent renewal Subscription Term. If Customer fails to pay the renewal invoice within the stipulated time, Preset has the right to conclude that the Subscription Term will not be renewed and use of the Service will cease (or at Preset’s option can be suspended). If Preset ceases to provide the Service for nonpayment, Customer Data may be irreversibly deleted. If Customer seeks to purchase any add-on products such as Embedded Dashboard via an Order Form, then Customer must contact Preset Sales and upgrade its Subscription.
2. TRIAL PERIOD AND FREE SUBSCRIPTION OPTION
Preset may make the Preset Service available to You free of charge, for example as a temporary free trial Subscription ["Trial"] or pursuant to a free Subscription tier if offered by Preset [“Free Subscription”]; Support offered by Preset may be more limited for these free options.
(a) Temporary Free Trial: an Entity or User can sample the Service as a free Trial for a period determined by Preset and indicated to You during the online Registration process ["Trial Period"], without having to input any billing information as part of its initial Registration. The free Trial Registration will only require Your first and last name (and name of the Entity if applicable) and Your email address. Additional terms and conditions may appear that apply to Your free Trial. At the end of the Trial Period, the Entity or User that has taken advantage of the Trial can complete the Registration by providing billing information and be upgraded to "Professional" User status (described in Section 1 above), or otherwise be downgraded to continue using the Service under a Free Subscription.
(b) Downgrade to Free Subscription: Additional terms and conditions may apply to You if You opt to continue using the Service under a free Subscription at the end of your Trial Subscription. You will have more limited functionality as a free Subscription User, as explained at Registration. These additional terms and conditions may include automatic renewal terms, where Customer agrees that its free Subscription will automatically renew into a paid Subscription tier absent notice of non-renewal from Customer. Any additional terms and conditions that form part of Your Registration and are incorporated into this Agreement by reference and are legally binding. If You want to terminate a Free Subscription, You will have to notify Preset to have Your account deleted, via email or by initiating a Support ticket with Preset. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ANY SERVICE PROVIDED PURSUANT TO A FREE TRIAL OR FREE SUBSCRIPTION TIER IS PROVIDED “AS-IS,” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED.
3. SCOPE OF USE
Right to Use. Customer’s Subscription to the Service gives Customer the right to use the Service subject to any limits that apply to the particular license that Customer obtains from Preset, as may be indicated in Customer’s Order Form provided by Preset or by notification from Preset, as Preset is constantly enhancing Service functionality. Preset will use commercially reasonable efforts to provide Customer with online notice, or notice to Customer’s account, in the event it modifies technical or numerical limitations on Users or makes available new features. There is no limit on how many times paid-Subscription Users can use the Service during the Subscription Term.
Additional Users. Customer may choose the number of Users entitled to use its Subscription to the Service during Registration or within the Service (or should a paid subscriber add Embedded Dashboard to its Subscription, the desired tier of viewers or other criterion specified by Preset). For each additional User that Customer invites to use the Service under Customer’s Subscription (or other specified metric agreed with Preset), the Fees will be automatically increased based on the per-User Fees agreed upon at Registration or set forth within the Service or applicable Order Form. The increased Fees for additional Users will be effective beginning at the time that a User who is invited by Customer accepts the invitation to use the Service (or when another applicable metric is exceeded, such as the applicable viewer tier for Embedded Dashboard).
Right to Resell. Customer has no right to resell the Service unless such right is expressly granted to Customer in the Order Form. If such right is granted, and 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 with Preset’s prior written consent) right to resell Embedded Dashboard viewers to its own customers for the latter to install on their systems in order to be able to view Customer’s external customer-related analytics data.
Use by Affiliates. The Subscription granted under this Agreement shall include a right for Customer to use the Service with its Affiliates by designating additional Users employed by its Affiliates as necessary, provided that Customer remains liable for all usage by Users including payment of all Fees, and for any acts or omissions of its Affiliates and their Users. For this purpose, an Affiliate is an entity which controls, is controlled by, or is under common control with Customer, where “control” means ownership of at least 50% of the equity interests in the controlled entity directly or indirectly, or the ability to direct the management of the controlled entity by contract.
4. USER ACCOUNTS AND ACCESS
If Customer is an individual, then Customer will not allow any other person or Entity to use the Service. If Customer is an Entity, Customer will not allow any other person or legal entity other than its employees or contractors authorized by it to use the Preset Services on its behalf, i.e., Users. Customer remains responsible for all acts or omissions by its Users in connection with their use of the Service and the Customer accounts, and their compliance with the terms and conditions of this Agreement. Customer should ensure that all Users keep their accounts secure. 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. Customer will promptly notify Preset if Customer knows or reasonably suspects that any User name and/or password has been compromised. Each account for access to and use of the Service may only be accessed and used by the specific User for whom such account is created. Customer will further ensure that no User misrepresents his or her identity. Please note that Users are named users, so shared services accounts such as email@example.com, firstname.lastname@example.org, email@example.com (unless they are not really shared because they resolve to a single named user account) cannot be Users. Use of an account by more than one individual person will be considered a violation of these Terms of Service and may result in account termination.
5. FEES, PAYMENT AND TAXES
The Subscription fees paid for Subscriptions to the Service and any add-on products ["Fees"] are payable in advance, net 30 days from date of invoice in the amount set forth in Customer’s Order Form for the initial year of the Subscription Term (unless otherwise agreed in the Order Form), which amount is calculated based on the number of named Users authorized to use the Service (purchase options are based on tiers of Users as specified in the Order Form). Prepaid fees for the Subscription Term are nonrefundable and payment obligations for the Service are noncancelable and continue for the Subscription Term, unless otherwise indicated in this Agreement. Customer will reimburse Preset for all costs (including reasonable attorneys’ fees) incurred by Preset to collect any overdue amounts. Customer shall have the right to authorize additional Users during the Subscription Term, which shall result in a prorated payment obligation for such additional User(s), as set forth below. Any other payments are due net 30 days from date of invoice, including any prorated invoices for Users added during the Subscription Term. All late payments are subject to a service charge equal to 1% per month (or the highest permitted legal rate if less than 1% per month) on any unpaid balance due until paid in full. The number of Users can increase during the Subscription Term as indicated but cannot be decreased.
The Fees for additional Users will be assessed on a pro-rated basis, covering the period of use from Customer’s designation of the new User(s) through the remainder of Customer’s applicable Subscription Term. Periodically Preset may submit a “true-up” invoice to Customer covering new Users designated by Customer during the Subscription Term beyond the license-type limits set forth in the Order Form if Customer’s paid Fees do not already cover new Users. Upon renewal the User’s license would be folded into the aggregate Customer Subscription to the Service for billing purposes. Preset has the right to monitor/verify the number of Users.
If Customer purchases a Subscription to the Service via credit card or other payment card or Preset-approved method [collectively, "Credit Card"], Customer hereby authorizes Preset (or its designee) to charge Customer’s Credit Card in accordance with the Fees for the Subscription and any other charges set forth on the Order Form. Customer acknowledges that certain Credit Cards may charge foreign transaction fees or other charges, which will be passed through to Customer. If Customer’s payment is not successfully settled for any reason, Customer remains responsible for any amounts not remitted to Preset; payment obligations regarding Fees are non-cancelable and the Fees are nonrefundable unless otherwise indicated in this Agreement. Preset may invoice Customer by email, unless otherwise agreed. Preset will try your Credit Card various times if it fails to process your payment, and will provide You notice of any payment failure. If this problem is not remedied by You within 14 days, Preset will suspend or terminate the Service 14 days after payment should have been made.
All stated Fees are exclusive of taxes and charges of any nature, such as levies, duties, value-added taxes, excise taxes, use or withholding taxes that may be assessed by any jurisdiction ["Taxes"]. Customer is responsible for paying all Taxes assessed on its purchase or renewal of a license, other than taxes based on Preset’s net income. In the event that Customer’s jurisdiction imposes income tax withholding on Customer’s purchase or renewal of a Subscription, Customer must gross up Customer’s payment to Preset so that it yields us the amount of fees stated in the Order Form.
6. OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA
The Service, Software, Service Information, Documentation, and all Enhancements to the foregoing, and any Materials provided by Preset or obtained or accessed by Customer from Preset or its agents, including underlying algorithms, interfaces, metadata, technology, databases, tools, know-how, processes and methods used to provide or deliver the Service, are and shall remain the sole property of Preset, its licensors and their successors and assigns, and under no circumstances may be used in any way other than pursuant to this Agreement and Order Form or other agreement between Customer and Preset. The Software, Materials and the Service may not be retained, sold, or reproduced by any means by Customer except as specified in this Agreement or the Documentation, and Customer shall have no intellectual property rights, including but not limited to trade secrets, trademarks, patent rights, copyrights and moral rights ["Intellectual Property Rights"] in the Service, Service Information, Software or Materials, including Enhancements. Preset also retains all modifications to and derivative works of such Software, Service, Service Information and Materials. "Service Information" means usage data and trends with respect to the Service, including about Users, provided that such information can never be identified to a specific User or customer. No right or license is granted to Customer or to any third party by implication, estoppel or otherwise, other than the express rights set forth in this Agreement. Preset may discontinue development of the Software at any time, which will not affect Customer’s Subscription during the then applicable Subscription Term. Any rights that Customer acquires in such Service, Software and/or Materials, other than the license rights granted by this Agreement, are hereby assigned to Preset, including all Intellectual Property Rights that Customer may have or acquire therein anywhere in the world (including moral rights, to the maximum extent permitted by applicable law), and any other rights Customer may have pertaining to the Software and/or Service provided by or made accessible by Preset. Customer will not attempt to register any Intellectual Property Rights in the Software, Service or Materials anywhere in the world. Finally, Preset retains a nonexclusive ownership right in all Feedback as indicated below.
"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 to Preset and/or through the Service, including Customer Data and PII, but excluding Software, the Service and Service Information. 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 Service during the Subscription Term, including to store the Customer Materials in temporary caches or to store Customer Data at Customer’s request. In addition, Preset may develop or derive data or insights in anonymized, deidentified and/or aggregate form, provided neither a User nor Customer can be identified from such derivation. 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, or if it may be terrorist content, or infringes or may infringe a third party’s Intellectual Property Rights, Preset has the right to remove such Customer Materials/content. For egregious or recurring Customer or User conduct of this nature, Preset may suspend or terminate Customer’s account, or a particular User account, as it deems necessary.
"Customer Data" includes data owned or processed by Customer using the Service, whether PII as defined below or other customer data, much of which consists of data returned to Customer’s Users from User queries. Customer and Customer’s Users retain all proprietary and Intellectual Property Rights in all Customer Data that Customer provides to Preset and/or Customer’s Users use with the Service. "PII" refers to personally identifiable information or personal data that Customer and Customer’s Users provide to Preset to facilitate provisioning of the Service, which remains the property of Customer and/or the data subjects who provided such PII. The PII that is provided by the User to establish his or her account and access the Service consists of an email address (plus a password that the User chooses). In general, Customer controls storage of Customer Data by Preset as indicated in this paragraph. Customer Data submitted to the Service by the Users is encrypted, and is automatically and temporarily cached by the Service for performance purposes, for a period that can be controlled by the User. In addition, Customer has the right to request that Preset store Customer Data if the Customer lacks its own database/datastore for such storage. The User uses the Service to connect to the Customer’s data source(s), and writes queries regarding the Customer Data, which are executed on Customer’s own database (subject to the previous sentence). Any remaining Customer Data in the possession of Preset shall be deleted following the end of the Subscription Term if such Term is not renewed, as evidenced by an account closure request by Customer/User, or if Customer/User requests deletion of Customer Data. Preset may use, display and modify the Customer Data solely to provide and improve the Service during the Subscription Term. from For the avoidance of doubt, Preset is not granted any right, title or interest in and to, and/or the right to use Customer's Intellectual Property Rights for any purposes whatsoever without the prior written consent of Customer. Notwithstanding the foregoing, Preset may use Client’s tradename/trademark for the purpose of client reference or identifying Customer on Preset customer lists.
7. RESTRICTIONS ON USE AND DISCLOSURE
When Customer/User(s) accesses or uses the Service, or any Software or Materials, Customer and any Affiliates and their Users agree that they will not directly or indirectly: : (i) copy, modify or create any derivative work of all or any portion of the Software, Service or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any component of the Software or Service, 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 Service 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 Service 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 Service (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) unless authorized in writing by Preset and/or the Documentation; or (vi) use the Service, Documentation or any other Preset Confidential Information for benchmarking or competitive analysis with respect to competing 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 Service. Further, Customer understands and agrees that the Software is the Confidential Information and property of Preset and its licensors. Accordingly, Customer agrees, and Customer will direct Customer’s Users, not to disclose the Software nor any Confidential Information about the Software, in whole or in part, to any third party without the prior express written consent of Preset in each instance, and subject to Section 9 hereof. In particular, Customer and Customer’s Users will not disclose to any third party or disseminate to the public (except privately to Preset), publish on the internet or elsewhere any tests run on the Software or results of such tests (if Customer is provided with a beta or evaluation version of the Software) without written permission from Preset.
8. PRESET’S OBLIGATIONS
Preset also has certain responsibilities to Customer:
A. Providing the Service and Support. Preset provides the Service to Customer and makes sure that Customer receives adequate Support. Preset uses commercially reasonable efforts to ensure that the Service operates materially in accordance with Preset’s Documentation, and with the requisite security precautions described in the next paragraph. Any Support/maintenance questions can be emailed to Preset at firstname.lastname@example.org or sent via ticketing to preset.io/support. Preset shall provide Customer with email Support during customary business hours. The hours for such assistance shall be 20/5 (20 hours per day, weekdays) for Severity 0 and 1 issues, and customary business hours for Severity 2 and 3 issues, 8AM to 6PM ET or as otherwise agreed. In the event a high Severity issue cannot be resolved timely (Severity 0 and 1), then Preset can escalate the issue and as required enable access to technical support engineers for assistance in the proper installation and use of the Service, and to report and resolve problems with the Service Preset will try to keep Customer informed of any necessary downtime. Please note that if You have a free Subscription, the foregoing is aspirational but not a commitment by Preset.
B. Protecting Customer Data and Personal Data. Both in providing the Service, and in protecting Confidential Information, Customer Data and PII, Preset hereby warrants that Preset has implemented and will maintain physical, operational and technical safeguards that are no less rigorous than accepted industry standard practices for safeguarding the Customer Data and PII that may be processed by the Software or Service, even though it is not possible to guarantee absolute security online, and will ensure that all such safeguards comply with applicable data protection and privacy laws. In addition, Preset’s interaction with Customer Data and PII is in accordance with Preset’s Privacy Notice which can be found at https://preset.io/privacy-policy, which is intended to comply with applicable privacy and data protection legislation, including without limitation GDPR.
9. CONFIDENTIAL INFORMATION
For purposes of this Agreement, Confidential Information includes innovations, any information, knowledge or data of either party which the other party and its employees may access or receive relating to the Service, Software, Materials, Customer Data, code, computer programs, accounting methods, marketing techniques, customer names, negotiated customer fee information, financial information, marketing plans, product plans, product or services roadmaps, business strategies, forecasts, personnel information, customer lists, trade secrets and any other nonpublic technical or business information, whether in writing, given to the recipient orally or in any other way communicated or provided to the recipient, including any Customer Data, Documentation, data or information used and/or uploaded by Customer or its Users to the Service, which the recipient knows or has reason to know that discloser would like to treat as confidential for any purpose, such as maintaining a competitive advantage or avoiding undesirable publicity. The Service, Software and any nonpublic Documentation shall remain the Confidential Information of Preset at all times. Any nonpublic Customer Data remains the Confidential Information of Customer or Customer’s Users. Neither party as the recipient shall disclose any Confidential Information of the disclosing party without the prior written consent of the disclosing party, and neither party shall use any Confidential Information of the disclosing party, except that Customer as recipient has the right to properly use the license granted under this Agreement, and Preset as recipient can use Customer’s Confidential Information only to the extent necessary to provide and enhance the Service and other services, or assist use by Customer’s Users of the license Customer has obtained under this Agreement.
All Confidential Information of the discloser shall be protected from disclosure by the recipient using the standard of care recipient uses with its most valuable confidential information, and at least a commercially reasonable standard of care; and (ii) no Confidential Information of the discloser shall be used for any purpose other than that for which it has been disclosed, and shall not be used for the benefit of recipient or any third party except as permitted by the license to use the Service and/or by this Agreement. Confidential Information does not include information that: (a) is in the public domain through no fault of the recipient; (b) was known to recipient prior to disclosure by the discloser without breach of an obligation to discloser, as can be demonstrated by documentary evidence; (c) was disclosed to recipient by a third party not known by recipient to be under a confidentiality obligation to discloser; (d) was independently developed by recipient without use of Confidential Information of discloser. If required by law or any tribunal or governmental order, recipient can disclose Confidential Information of discloser, but recipient first shall give discloser the opportunity to oppose or limit such disclosure and shall never disclose more than recipient is required to disclose.
Preset hereby undertakes to ensure that its partners, affiliates, officers, directors, employees, agents or other representatives that have access to, or in any way receives Confidential Information under this Agreement, and/or any subcontractors engaged by Preset for the performance of its obligations under this Agreement, are bound by confidentiality undertakings no less restrictive than the provisions of this Section 8. This Section 8 shall survive the termination and/or expiration of this Agreement.
10. CUSTOMER/USER FEEDBACK
Customer understands and Customer’s Users agree that Users are welcome to provide Preset with comments, suggestions, concepts, ideas, recommendations for improvements and other feedback concerning the Service, Software and Materials [collectively, "Feedback"] including without limitation the use, operation, functionality, appearance and other features and characteristics of the Service, Software and Materials. Any and all Feedback concerning the Software and Service, whether or not patentable or protectable in another form, becomes the nonexclusive property of Preset immediately upon communication of such Feedback to Preset. Preset obtains an undivided interest in the whole of the Feedback. Preset may use the Feedback at any time, in any manner, and in any form or medium now existing or hereafter created, without obligation to provide any reporting or accounting to Customer. Preset shall also have the right to own and register any Intellectual Property Rights anywhere in the world in the Feedback or results or derivative works thereof. Accordingly, Customer agrees that such Feedback concerning the Service, Software and Materials is provided to Preset for its nonexclusive use in any manner it deems fit, including without limitation the commercial exploitation thereof and/or the sale or other transfer thereof to one or more third parties, free of any Preset obligation to Customer or others. Customer’s Users should not provide to Preset any Feedback in which any third party has or may have any right, claim or interest or in which Customer or Customer’s Users either assert, or have any expectation of retaining, any interest whatsoever or of receiving any remuneration, reward or consideration of any sort, beyond the consideration expressly set forth in this Agreement.
11. PROFESSIONAL SERVICES AND TRAINING
Preset also offers live Superset User training for additional cost. Details of Preset’s training services are available to Customer upon request at email@example.com.
Professional Services are also available from Preset or Preset’s designated professional services subcontractor(s) at standard hourly rates, with a one-week minimum engagement, with Preset typically engaged to provide implementation, onboarding, database connection and migration assistance, building dashboards; please reach out to firstname.lastname@example.org to inquire.
12. WARRANTIES AND DISCLAIMER
THE SERVICE, SOFTWARE AND MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” EXCEPT AS INDICATED BELOW. PRESET WARRANTS THAT THE SERVICE WILL BE PERFORMED AT AN INDUSTRY-STANDARD LEVEL BY DULY QUALIFIED PERSONNEL, AND THE SOFTWARE WILL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH ITS DOCUMENTATION. PRESET MAKES NO OTHER WARRANTIES OF ANY KIND IN CONNECTION WITH THE SERVICE, SOFTWARE AND MATERIALS, AND HEREBY DISCLAIMS ALL WARRANTIES OF EVERY KIND, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. NO WARRANTY IS GIVEN WITH RESPECT TO SECURITY OR PRIVACY UNLESS OTHERWISE INDICATED IN THIS AGREEMENT, OR FOR ANY THIRD-PARTY MATERIALS UNLESS A THIRD-PARTY WARRANTY CAN BE PASSED THROUGH TO CUSTOMER.
A. Preset Indemnification of Customer. Preset will defend Customer at Preset’s expense against actual third-party claims, suits, actions or proceedings ["Claim(s)"] that the Service or Software as used by Customer and Customer’s Users in accordance with this Agreement infringes or misappropriates a third party’s Intellectual Property Rights, with Preset paying its own defense costs and attorney’s fees regarding the Claim, and Preset will indemnify Customer for all final amounts awarded against Customer or settlement amounts that must be paid to such third party, provided that Preset will have no liability if: (i) Customer/Customer’s Users have not used the Service properly in accordance with this Agreement; (ii) Customer’s delay in informing Preset about the Claim has adversely affected Customer’s or Preset’s legal position or Preset’s defense obligation; (iii) the Claim arose in whole or in part from Customer’s or Customer’s Users combination of the Software or Materials with non-Preset software or materials or Customer Data, which was done by a party other than Preset or other than strictly in accordance with Preset’s Documentation and/or written instructions; (iv) the Claim arose in whole or in part from modification to the Service, Software or Materials done by a party other than Preset or not done strictly in accordance with Preset’s Documentation or written instructions; (v) the Claim arose in whole or in part because Customer failed to, within reasonable time (not to exceed 60 days), implement an Enhancement that Preset provided to Customer before the Claim arose; or (vi) the Claim arose in whole or in part from non-Preset products or software. In any event, Preset’s obligations under this paragraph are also conditioned on Customer’s full cooperation with Preset to enable it to fulfill its obligations hereunder, and on Customer’s mitigating damages by promptly installing any Enhancement that Preset provides to resolve the Claim. In any settlement, Customer’s prior written consent shall be required, not to be unreasonably withheld. This paragraph is Customer’s sole remedy and Preset’s only obligation with respect to a Claim against Customer.
B. Customer Indemnification of Preset. Customer will defend Preset and its personnel and affiliates ["Preset Indemnitees"] against any Claims that arise from: (i) Customer’s or any of its Users violation of this Agreement, or (ii) infringement or misappropriation by the Customer Data of the Intellectual Property Rights of a third party, or (iii) Customer’s or its Users’ use or processing of PII in violation of the rights of a data subject, and Customer will indemnify the Preset Indemnitees for reasonable attorney’s fees incurred and damages finally awarded against a Preset Indemnitee pursuant to such Claim, and for any amounts owed or paid by a Preset Indemnitee under a settlement of such Claim. Customer's indemnification obligation under this paragraph is subject to Customer receiving (i) prompt written notice from Preset Indemnitees of such claim (but in any event, notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Preset Indemnitees at such party's expense. In any settlement, Preset’s prior written consent shall be required if a Preset Indemnitee is affected thereby, not to be unreasonably withheld. This paragraph is Preset’s sole remedy and Customer’s only obligation with respect to a Claim against a Preset Indemnitee.
14. LIMITATION OF LIABILITY AND EXCLUSION OF REMEDIES
PRESET SHALL NOT BE LIABLE FOR ANY LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE OR LOST REVENUES, PROFITS OR DATA, OR HARM TO ANY COMPUTER OR SYSTEM EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. PRESET HAS USED COMMERCIALLY AVAILABLE ANTI-VIRUS TECHNOLOGY AND HAS NOT KNOWINGLY INCLUDED ANY VIRUS, WORM, TROJAN HORSE OR OTHER MALWARE IN THE SERVICE OR SOFTWARE BUT MAKES NO WARRANTY THAT IT IS FREE FROM SAME.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES OR COSTS DUE TO LOSS OF PROFITS, GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH THE AGREEMENT) REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF CUSTOMER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FROM ANY CAUSE OR MATTER ARISING UNDER OR IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT OR ITS BREACH EXCEED IN THE AGGREGATE AN AMOUNT EQUAL TO THE SUM OF ALL AMOUNTS PAID OR PAYABLE UNDER THE ORDER FORM AS OF THE DATE THE CLAIM FIRST AROSE, REGARDLESS OF THE FORM OF ACTION AND HOWEVER ARISING.
THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9, EITHER PARTY'S INDEMNITY OBLIGATIONS IN SECTION 13 AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. LIABILITY FOR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 SHALL BE CAPPED AT 3X THE AMOUNT PAID UNDER THE THEN-CURRENT ORDER FORM, AND FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 AT 5X THE AMOUNT PAID UNDER THE THEN-CURRENT ORDER FORM.
Either party can terminate this Agreement for breach by the other party, by giving written notice to the other party and a 30-day period to cure the breach, if the breach is capable of cure. Customer can terminate Customer’s Subscription at any time for convenience also, but such termination of the Service shall not affect Customer’s requirement to pay for the entire Subscription Term. If Customer validly terminates the Agreement for breach by Preset, Customer is entitled to a pro-rated refund of prepaid Fees covering any time period subsequent to the termination date. Upon termination, Customer shall promptly delete/destroy or otherwise remove the Software/Service and any ability to access it from computer, mobile phone or other storage device where it has been downloaded, stored, installed or used. Preset shall have the right to retain copies of Confidential Information to the extent (i) required to comply with legal requirements; (ii) mandated by Preset’s record retention policy; or (iii) stored on routine back-up media solely for the purpose of disaster recovery, provided that such information is deleted or destroyed in due course and that employees are precluded from accessing such Confidential Information in the ordinary course of business prior to destruction.
16. EXPORT RESTRICTIONS
The Software and Service are subject to United States export laws and regulations, as well as to international export laws and regulations wherever the Service is used. These laws include restrictions on permitted destinations, end users and end use, and on countries subject to sanctions and embargoes. In particular, the Service and Software cannot be used or exported: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country as defined by the United States Government; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval.
17. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed exclusively by the laws applicable in the State of California, USA, excluding the application of its conflicts of laws principles. Any dispute arising under or with respect to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be solely and exclusively resolved by binding arbitration in San Jose, California, before a single arbitrator from JAMS’s panel of arbitrators, in an arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules (or if one party is based outside the United States, JAMS’s International Arbitration Rules). Judgment upon any award or decision rendered by the arbitrator shall be binding on the Parties and may be entered by any court or forum having competent jurisdiction. This clause shall not preclude either party from seeking provisional remedies (such as an injunction) in aid of arbitration from a court of appropriate jurisdiction. In any such arbitration, the prevailing party shall recover its attorneys’ fees and costs from the other party, and the arbitral panel shall determine the prevailing party for this purpose. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY UNDERSTANDS AND AGREES THAT IT WAIVES: (A) THE RIGHT TO A TRIAL BY JURY; AND (B) THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION.
18. RELATIONSHIP OF THE PARTIES; ADDITIONAL SECURITY RESPONSIBILITIES
Nothing in this Agreement shall be interpreted or construed as creating or establishing any partnership, joint venture, employment relationship, franchise or agency or any other similar relationship between Customer and Preset or any of its agents and employees.
In addition to the foregoing obligations, Customer and as applicable, its Users, have the following obligations: (1) understanding and complying with this Agreement, the Order Form and any other contractual obligations with Preset; (2) notifying Preset of changes made to technical or administrative contact information; (3) maintaining their own system(s) of record; (4) ensuring the supervision, management, and control of the use of the Service by their Users; (5) independently backing up all Customer Data and PII, and developing Customer’s own disaster recovery and business continuity plans that address the inability to access or utilize the Service and any other Preset services; (6) providing Preset with a list of approvers for security and system configuration changes for data transmission; and (7) immediately (in no more than 48 hours) notifying Preset of any actual or suspected information security breaches, including compromised user accounts, including those used for integrations and secure file transfers.
If Customer is an Entity, Customer agrees to permit Preset to list Customer as a Preset customer on its principal website and Preset webpages on any social media sites, as well as in promotional materials. Preset will be permitted to use Customer’s name and logo, subject to any trademark or brand usage guidelines provided to Preset. In addition, upon the request of Preset, if Customer is satisfied with the Service, (a) Customer agrees to provide Preset with two positive C-level quotes that Preset can use on its websites/webpages and in the referenced materials upon Preset’s email request, and (b) Customer may participate in and/or provide Preset with a case study and/or testimonial which Preset can use as described above with respect to Customer quotes, subject to Customer availability.
20. MODIFICATION OF THE TERMS
It is possible that Preset will seek to modify its Terms of Service as Preset’s business evolves, provided that any Order Forms that Customer has entered into with Preset cannot be modified without Customer’s written consent Preset may modify this Agreement at any time by providing notice to Customer through the Service, to Customer’s account 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 Service, or (b) uses or accesses the Service after such notice.
21. GENERAL PROVISIONS; ENTIRE AGREEMENT
The Parties hereto agree that this Agreement together with the Order Form sets forth the entire Agreement and understanding between Customer and Preset concerning the Service, Software and Materials and Customer’s license to use them, and this Agreement supersedes all prior and contemporaneous communications, written or oral, concerning the Service, Software and Materials and is intended to be a complete and exclusive statement of the terms of Customer’s Agreement with Preset. Customer acknowledges that it has not relied upon any representation whatsoever of Preset which is not contained in this Agreement. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be modified and 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. Any waiver by Preset of any breach or default by Customer of any of the terms or conditions of this Agreement will not be considered a continuing waiver or a waiver of any prior, subsequent or different breach. In the event of any conflict between the Order Form and the body of the Agreement, the Order Form shall prevail. Preset shall have the ongoing right to assign this Agreement to any current or future Preset affiliated company or third party, whether by merger, acquisition, reorganization, sale of substantially all assets or equity, or by operation of law, without Customer’s consent and without notice. Any assignment or attempted assignment by Customer of this Agreement in whole or in part, or of any of the rights granted herein, without the prior written consent of Preset, shall be void.
PERSONAL INFORMATION: DATA PROCESSING ADDENDUM
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 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, and repealing Directive 95/46/EC) and its respective national implementing laws (collectively, "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 and
pursuant to the data controller’s instructions;
(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 or are well known data centers (e.g., Amazon Web Services, Microsoft Azure, Google Cloud Platform) that are subject to equivalent obligations. 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 (data subjects) 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 Customer request for account closure or data deletion (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 and allow for and contribute to audits, conducted by Customer or another auditor selected 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 GDPR 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.
107 S B St Suite 220
San Mateo, CA 94401