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PRIO TERMS OF USE

 

These Terms of Use (the “Terms of Use”) govern “Your” (as defined below) use of “Prio” - JCLAD Software, LLC’s online subscription-based Work Management Services that allows corporations and individuals to coordinate tasks and projects. Prio includes (a) products and services offered by JCLAD Software, LLC (“JCLAD”)  that You order, either pursuant to an order form or by clicking on the box indicating Your acceptance of these Terms of Use on the registration page for any Prio Service, along with “Prio Mobile”, JCLAD’s application for mobile devices; and (b) all user guides and other reference materials generally furnished by JCLAD with respect to the foregoing, whether in print or electronic form, as updated by JCLAD from time to time (“Documentation”). These Terms of Use govern Your use of all versions of Prio, including free trials and versions of Prio that offer limited functionality.

Please read these Terms of Use carefully. By executing a written order form for Prio provided by JCLAD (an “Order Form) or clicking on the box indicating Your acceptance of these Terms of Use on the registration page for Prio, You are stating that You have read and understand, and agree to be bound by, these Terms of Use.

You” (and all derivations thereof) means you or, if you are accepting these Terms of Use on behalf of a legal entity, such as a company or limited liability partnership, such legal entity. If You are entering into these Term of Use on behalf of a legal entity, You represent and warrant that You have the authority to bind such legal entity. If You do not have such authority or do not agree to these Terms of Use, neither You nor any such legal entity are permitted to use Prio.

1.                    Free Trials and Limited Time Offers.

1.1                 If You register for a free trial or limited time offer of Prio (a “Special Offer”), JCLAD will make those portions of Prio listed as part of the Special Offer available to You free of charge until the earlier of (a) the end of the term of such Special Offer; or (b) the start date of the subscription for Prio set forth in an Order Form that You execute. Additional terms and conditions applicable to Your Special Offer may appear on the registration page for such Special Offer and all such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

1.2                 ANY DATA THAT YOU ENTER INTO PRIO AND ANY USER CONFIGURATIONS TO PRIO THAT YOU MAKE DURING THE TERM OF YOUR SPECIAL OFFER WILL BE PERMANENTLY LOST UNLESS YOU EXECUTE AN ORDER FORM FOR PRIO OR EXPORT YOUR DATA BEFORE THE END OF THE TERM OF YOUR SPECIAL OFFER. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE TERM OF A SPECIAL OFFER TO A VERSION OF PRIO THAT WOULD  BE A DOWNGRADE FROM THE VERSION OF PRIO OFFERED AS PART OF THE SPECIAL OFFER. IF YOU PURCHASE A VERSION OF PRIO THAT WOULD BE A DOWNGRADE, YOU WILL LOSE YOUR DATA UNLESS YOU EXPORT IT BEFORE THE END OF THE TERM OF YOUR SPECIAL OFFER.

2.                    Provision of Prio.

2.1                 Limited License. JCLAD hereby grants You a nonexclusive, nontransferable, revocable, worldwide license, without right of sublicense, to access and use, and to allow Your “Users” (defined below) to access and use, Prio for Your internal use. The foregoing license and Your use of Prio is also subject to any and all Documentation provided in connection therewith.

2.2                 JCLAD’s Responsibilities. JCLAD will make Prio available to You during the term of Your subscriptions pursuant to the terms and conditions set forth herein and in any applicable Order Forms. JCLAD will: (a) provide Prio in accordance with applicable laws and government regulations; (b) provide You with JCLAD’s basic support for Prio at no additional charge, and/or any JCLAD upgraded support package that You have purchased separately; (c) protect all digital data and information submitted by You to Prio (“Your Data”) in accordance with JCLAD’s Online Privacy Policy, the terms of which are hereby incorporated herein by reference; and (d) use commercially reasonable efforts to make Prio available twenty-four (24) hours a day, seven (7) days a week, excluding (i) scheduled maintenance or repairs; or (ii) any unavailability caused by circumstances beyond JCLAD’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks. JCLAD will notify You via Prio of all scheduled maintenance or repairs at least eight (8) hours prior to such maintenance or repairs. To the extent practicable, maintenance and repairs will be scheduled outside of the hours of 8:00AM EST to 10:00PM EST and will be scheduled over the weekend (6:00PM EST Friday to 6:00AM EST Monday).

2.3                 Revisions to Terms of Use.  You acknowledge that, from time to time, JCLAD may amend these Terms of Use or other terms governing Your use of Prio, including with respect to JCLAD’s security and privacy policies (collectively, “Revised Terms of Use”). JCLAD may notify You by email of any Revised Terms of Use and will post such Revised Terms of Use through Prio. You acknowledge that You will be bound by the Revised Terms of Use as of their effective date set forth in the notice. If You do not agree to the Revised Terms of Use, You may terminate Your subscriptions as set forth in Section 10.2.

3.                    Your Responsibilities.

3.1                 Authorized Users.

(a)           Unless otherwise specified in any applicable Order Form, Prio may be accessed and used by no more than the total number of Users for which You have registered online or, if you have executed an Order Form, the total number of Users set forth on such Order Form; provided however, that You may add additional Users during Your subscription term at the pricing set forth on the registration page for Prio or in such Order Form, as applicable. The subscription term for such additional Users will be pro-rated for the remainder of subscription term in effect at the time such additional Users are added. User subscriptions are for designated Users only and cannot be shared with or used by more than one User. You and Your Users will not share any User identifications or passwords for Prio with any other party. For the purpose of these Terms of Use, “Users” means individuals authorized by You to use Prio who have been supplied user identifications and passwords by You (or by JCLAD at your request).

(b)           You are responsible for maintaining the confidentiality of Your and Your Users’ account passwords and You are solely responsible for all activities that occur through Your and Your Users’ accounts. You agree to immediately notify JCLAD of any breach or unauthorized use of any of Your or Your Users’ accounts. JCLAD reserves the right to require You and Your Users to alter Your passwords if JCLAD believes that Your passwords are no longer secure. You agree that You will be solely responsible for any loss or damage You suffer as a result of Your or Your Users’ failure to adequately safeguard account information and that You may also be liable for the losses of JCLAD or others due to such failure.

3.2                 Use of Prio. You will (a) use Prio only for Your internal business purposes; (b) be responsible and liable for Your Users’ compliance with these Terms of Use; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Prio and promptly notify JCLAD of any such unauthorized access or use of which You become aware; and (d) comply with all local, state and federal laws applicable use of Prio. You acknowledge that Prio is accessed via the Internet and on mobile devices. You are responsible for providing all hardware, system software, access devices, networks and telecommunications or other connections required for You and Your Users to access Prio and paying all telephony, data transmission and other costs associated with such access.

3.3                 Updates. JCLAD may, in its sole discretion, modify, update or delete features or services or modify the appearance of Prio at any time in its sole discretion. In connection with such updates and modifications, You may be required to implement upgrades or modifications to Your networks and other systems and will implement any such upgrades and modifications at Your sole expense.

3.4                 Restrictions. You will not use Prio or any component thereof except as expressly authorized by these Terms of Use and by applicable law. Except as expressly permitted herein, You will not copy, reproduce, display, perform, modify or create derivative works of Prio, including without limitation the Documentation.  You will not market, sell, license, sublicense, lease, act as a service bureau, transfer, assign, sell, alter, repair, encumber or assign a security interest in Prio or any component thereof. You will not, and will not instruct, permit, allow or induce any person, directly or indirectly, to:  (a) decompile, disassemble or otherwise reverse engineer Prio or any portion thereof, or otherwise attempt to derive the source code or other trade secrets embodied in Prio, except to the extent required to be permitted by law; (b) use Prio to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) use Prio in a managed services arrangement; (d) attempt to gain unauthorized access to or use of Prio or damage, disrupt, or impede the operation of Prio or JCLAD’s other services or systems; (e) upload or transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature through Prio; or (f) access Prio in order to build a competitive product or service. JCLAD reserves the right to immediately terminate Your subscription(s), without any further obligation to You and without any obligation to refund any Fees previously paid, if You tamper with or modify Prio without JCLAD’s prior written authorization or otherwise use Prio in violation of these Terms of Use.

3.5                 Your Data.  You will be responsible for the accuracy, quality and legality of Your Data and the legality of the means by which You acquired Your Data. You further acknowledge that in connection with Your use of Prio, JCLAD may have access to or process Your Data, including system-specific data and personal, proprietary information and, subject to JCLAD’s compliance with its confidentiality obligations under Section 11, You hereby authorize JCLAD to do so as required to provide Prio to You.

4.                    Fees and Payment.

4.1                 Fees. You will pay JCLAD the fees, if any, set forth on the registration page for Prio that You purchase or, if You have executed an Order Form(s), in such Order Form(s) (the “Fees”). The number of User subscriptions purchased may not be decreased during the applicable subscription term but may be increased as described in Section 3.1. All sales are final and nonrefundable unless otherwise provided by law. All Fees are listed in and all payments will be made in U.S. Dollars.

 

4.2                 Taxes. All Fees are exclusive of taxes, including import or export duties, sales, use, value added, withholding and excise taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”). If JCLAD has the legal obligation to pay or collect Taxes for which You are responsible, such Taxes will either be included on JCLAD’s invoices to You or listed on the registration page for Prio, as applicable, and You will pay such Taxes to JCLAD, unless You provide JCLAD with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

4.3                 Payment.

 

(a)           You acknowledge and agree that You are responsible for paying all Fees in a timely manner and for providing a valid credit card or other form of payment acceptable to JCLAD. IN ADDITION, YOU ACKNOWLEDGE THAT IF YOU REGISTER FOR PRIO ONLINE, YOUR ONLINE ACCEPTANCE CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND JCLAD AND SIGNIFIES YOUR INTENT TO BE BOUND TO SUCH ONLINE ACCEPTANCE.

 

(b)           Unless otherwise stated in an applicable Order Form, any invoiced charges are due net thirty (30) days from JCLAD’s invoice date. You are responsible for providing complete and accurate billing and contact information to JCLAD and notifying JCLAD of any changes to such information. All JCLAD accepts payment by credit card and any other form of payment that JCLAD may make available for Prio. JCLAD may charge Your account’s listed payment method the amounts due for Prio, including any taxes or other additional amounts indicated on the transaction page for Prio or on the Order Form. You further agree to abide by any relevant terms of service or other legal agreement, including with a third party payment services provider, that governs Your use of a given payment processing method. JCLAD may add or remove payment processing methods in its sole discretion and without notice to You.

 

(c)            By providing JCLAD with a payment method, You: (i) represent that You are authorized to use the payment method that You provided; and (ii) authorize JCLAD to charge You for the subscriptions to Prio that You order using Your payment method. JCLAD will notify You in advance of any price changes for recurring subscription services.  Provided that automatic renewals are allowed in Your country, if You selected automatic renewal when You signed up for Prio, JCLAD may automatically renew your subscription to Prio at the end of Your then-current subscription term. JCLAD will inform You by e-mail prior to each renewal and remind You that Your designated payment method will be billed. JCLAD will also provide You with instructions on how to cancel Prio. You must cancel Prio prior to the renewal date to avoid being billed for renewal of your subscriptions.

 

(d)           If You believe there is an error in the Fees You have been charged or for which you have been invoiced, as applicable, You must notify JCLAD within ninety (90) days after the error first appears. JCLAD will then promptly investigate the charge. Subject to applicable laws, if You do not notify JCLAD within that time, You release JCLAD from all liability and claims of loss resulting from the error and JCLAD will not be required to fix the error or provide a refund. If JCLAD identifies a billing error, JCLAD will correct the error within sixty (60) days.

 

4.4                 Late Fees. If You fail to pay any Fees or other charges due by their applicable due date, at JCLAD’s discretion, such charges may accrue late charges at the rate of one percent (1%) of the outstanding balance per month or the maximum rate permitted by law, whichever is less, from the date such payment was due until the date paid. All amounts paid will first be applied against any late charges due, with the balance applied against the outstanding Fees and charges. To the extent permitted by law, You will pay for all reasonable costs JCLAD incurs to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs.

 

4.5                 Suspension of Service.  If any undisputed Fees or charges are overdue more than thirty (30) days, JCLAD will have the right upon written notice to You, without limiting its other rights and remedies, to suspend Prio until such amounts are paid in full.

 

5.                    Intellectual Property Rights. 

5.1                 Ownership of Prio. As between You and JCLAD, JCLAD owns and retains all right, title and interest, including all intellectual property rights in and to (a) Prio, (c) JCLAD’s Confidential Information (defined in Section 11) and any and all other information relating to Prio or its implementation, marketing, promotion, or sale; (c) all work product, content, ideas, know-how, concepts, methods and techniques created or employed by JCLAD in the delivery of Prio, whether pre-existing or developed in the course of providing Prio; and (d) any derivative works based on any of the foregoing (collectively, the  “JCLAD IP”). In addition, You agree and acknowledge that JCLAD has an unlimited, irrevocable, perpetual right and license to use, incorporate into Prio, distribute and otherwise exploit all suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to Prio provided by You or any of Your Users, all of which is deemed part of the JCLAD IP. In the event any right, title or interest arises or vests at any time in You to any JCLAD IP, You hereby assign to JCLAD all such right, title and interest.

5.2                 Ownership of Your Data.  You own and will retain all right, title and interest, including all intellectual property rights, in and to Your Data.

5.3                 Usage Statistics. JCLAD may aggregate and use for JCLAD’s internal business purposes those portions of Your Data that relate to how You use Prio (“Usage Statistics”) and may disclose the Usage Statistics to third parties for the purpose of improving Prio or for JCLAD’s marketing and promotional purposes so long as the Usage Statistics are disclosed only in the aggregate, do not include Your Confidential Information and are not disclosed in a manner so that they would be attributable specifically to You, Your projects or customers or in a manner that would provide the ability to identify individuals or Your customers.

5.4                 Reservation of Rights. Other than the explicit rights granted herein, nothing in this Subscription Agreement will be construed or interpreted as granting to You any rights or licenses in or to the JCLAD IP, including any rights of ownership, intellectual property rights or any other proprietary rights.

6.                    Publicity. If You are a legal entity, JCLAD has the right to list Your legal entity as a user of Prio in descriptions of Prio and in related promotional and marketing materials and press releases. JCLAD will not use any of Your trademarks on such materials without Your prior written consent.

7.                    Warranties and Disclaimers.

7.1                 Your Data. You represent and warrant that You have made all disclosures and obtained all rights and permissions required to use and transfer Your Data within and outside the country where Your Data originates and for JCLAD to use Your Data as set forth in Section 3.5.

7.2                 Disclaimers. YOU ACKNOWLEDGE THAT PRIO AND ANY OTHER SERVICES PROVIDED BY JCLAD, AND ALL COMPONENTS OF ALL OF THE FOREGOING, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JCLAD DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, TITLE OR NON-INFRINGEMENT; (B) RELATING TO THE PERFORMANCE OF PRIO OR JCLAD’S PERFORMANCE OF ANY OTHER SERVICES; (C) WITH RESPECT TO ANY RESULTS TO BE OBTAINED FROM PRIO; (D) THAT USE OF PRIO WILL BE UNINTERRUPTED OR ERROR FREE; OR (E) WITH RESPECT TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, OR EFFECTIVENESS OF ANY DATA, RESULTS, CONTENT OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU OR YOUR USERS THROUGH USE OF PRIO. YOU UNDERSTAND AND AGREE THAT YOUR USE OF PRIO IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM JCLAD OR THROUGH PRIO WILL CREATE ANY WARRANTY FROM JCLAD NOT EXPRESSLY MADE HEREIN.

Prio is controlled and offered by jclad from its facilities in the United States of America. jclad makes no representations that Prio are appropriate or available for use in other locations. Those who access or use Prio from other jurisdictions do so at their own RISK and are responsible for compliance with local law.

 

8.                    Indemnification.

8.1                 By JCLAD. JCLAD will indemnify, defend and hold harmless You (and Your officers, directors, employees, shareholders and agents) from and against any and all claims, liabilities, losses, damages, fines, injuries, interest or expenses (including reasonable attorneys’ fees and costs of investigation and defense) (“Losses”) finally awarded against You by a court of competent jurisdiction arising from or relating to any third party claim that Prio, when used as permitted under these Terms of Use, violate or infringe any intellectual property rights of any third party or violate applicable law; provided that You provide JCLAD with (a) prompt written notice of such claim or action; (b) sole control and authority over the defense or settlement of such claim or action; (c) proper and full information and reasonable assistance to defend and/or settle any such claim or action, and (d) JCLAD may not settle any such claim in any manner that binds You without Your prior written consent. Notwithstanding the foregoing, You may, at Your own expense, participate in the defense and settlement of any such claim that is subject to indemnification. In the event that a claim subject to this Section 8.1 is made or threatened, or JCLAD reasonably believes that Your use of Prio is likely to be infringing, JCLAD, at its option and expense, may either (a) secure for You the rights necessary to continue to use the applicable Prio Service; (b) modify such Prio Service so that it becomes non-infringing, (c) replace the potentially infringing portion of such Prio Service with a functionally equivalent non-infringing product or service; or (d) immediately terminate your subscription.

8.2                 By You. Subject to JCLAD’s indemnification obligations set forth in Section 8.1, You will indemnify, defend and hold harmless JCLAD (and its officers, directors, employees, shareholders and agents) from and against any Losses incurred by JCLAD arising from or relating to (a) the actual or alleged violation or infringement of any intellectual property or privacy rights of any third party by any Your Data or any other materials provided by You to JCLAD under these Terms of Use; (b) Your use of the Services; or (c) Your violation of applicable law; provided that JCLAD provides You with (i) prompt written notice of such claim or action, (ii) sole control and authority over the defense or settlement of such claim or action; (iii) proper and full information and reasonable assistance to defend and/or settle any such claim or action, and (iv) You may not settle any such claim in any manner that binds JCLAD without JCLAD’s prior written consent. Notwithstanding the foregoing, JCLAD may, at its own expense, participate in the defense and settlement of any such claim that is subject to indemnification.

8.3                 Exceptions. Notwithstanding the provisions of Section 8.1, JCLAD will have no obligation to indemnify You with respect to any Losses to the extent resulting from (a) the combination of any Prio Service or portions thereof with products or services not provided by JCLAD, including Your Data; (b) the modification of Prio by any party other than JCLAD; or (c) use of Prio in a manner not expressly permitted by these Terms of Use.

8.4                 Exclusive Remedy.  This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any of the claims set forth in this section.

9.                    Limitation of Remedies and Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF USE, IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHETHER IN CONTRACT, IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) OR OTHERWISE RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM UNDER THESE TERMS OF USE OR FROM THE JCLAD IP (INCLUDING LOSS OF DATA OR LOSS OF ANTICIPATED PROFITS OR BENEFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT WITH RESPECT TO YOUR PAYMENT OBLIGATIONS UNDER THESE TERMS OF USE, EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, PRIO OR THE JCLAD IP, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES DUE JCLAD FOR YOUR USE OF PRIO OVER THE PRECEDING TWELVE (12) MONTHS.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the limitations and disclaimers set forth in Sections 7 and 9 may not apply to You. To the extent that JCLAD may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of JCLAD’s liability will be the minimum permitted under such applicable law.

10.                 Term and Termination. 

10.1              Term. The term of these Terms of Use will commence on the date You accept them and will continue until all Your User subscriptions for Prio have expired or been terminated.  If You register for a Special Offer and do not execute an Order Form before the end of the term of such Special Offer, Your subscription will terminate at the end of the term of such Special Offer. The term of each of Your User subscriptions set forth in an Order Form will commence on the start date set forth in such Order Form and will continue for the term set forth therein. The term of each User subscription set forth in an Order Form will automatically renew for successive periods equal to the original subscription term at JCLAD’s then-current pricing for Prio unless either party provides the other party with written notice at least thirty (30) days prior to the end of the then-current term.

10.2              Termination for Convenience. You may terminate any or all of Your subscriptions to Prio or these Terms of Use at any time, with or without cause, by ceasing to use Prio. If You register for a Special Offer, during the term of such Special Offer, JCLAD may terminate any or all of Your subscriptions to Prio or these Terms of Use at any time, with or without cause, upon written notice to You; provided however, that if Your account has been inactive for a period of thirty (30) days, JCLAD may terminate Your account without notice.

10.3              Termination for Breach. If at any time during the Term, either party materially defaults in its performance of or breaches any of the terms and conditions of these Terms of Use and such breach is not cured within thirty (30) days after the breaching party receives notice of such breach from the non-breaching party, the other party will have the right to terminate these Terms of Use effective immediately upon written notice to the breaching party.

10.4              Effect of Termination. Upon the expiration or termination of these Terms of Use for any reason, You will immediately cease all use of Prio and all licenses granted to You hereunder and all User subscriptions will immediately terminate. The following Sections will survive the expiration or termination of these Terms of Use for any reason: 5 (Intellectual Property Rights), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Remedies and Damages), 10.4 (Effect of Termination), 11 (Confidential Information), and 13 (Miscellaneous).

11.                 Confidential Information.

11.1              Confidential Information.  “Confidential Information” means information that is disclosed by a party (“Discloser”) to the other party (“Recipient”) whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation of the foregoing, Your Confidential Information includes Your Data and JCLAD’s Confidential Information includes Prio, the Order Forms and the terms of Your subscriptions for use of Prio, as well as all information relating to JCLAD’s business, including product and service development plans and technical information. Notwithstanding the foregoing, Confidential Information does not include information that Recipient demonstrates: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Information. 

11.2              Protection of Information.  Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by these Terms of Use, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of its performance under these Terms of Use and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.  Recipient will protect Discloser’s Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. 

11.3              Required Disclosure. Notwithstanding anything in these Terms of Use to the contrary, addition, Recipient may disclose the Confidential Information of Discloser to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient (a) notifies Discloser of such required disclosure promptly and in writing in order to permit Discloser to seek a protective order or other appropriate relief; (b) cooperates with Discloser in such efforts; and (c) discloses only the Confidential Information required to be disclosed. Recipient will continue to treat any Confidential Information disclosed pursuant to this Section 11.3 as Confidential Information for all other purposes.

12.                 Data Security.

12.1              Security. JCLAD shall use reasonable efforts to identify internal and external risks to the security, confidentiality and integrity of Your Confidential Information in its environment and shall employ and maintain reasonable physical, electronic and procedural safeguards and software security measures to maintain the security of Prio and Your Confidential Information, consistent with legal requirements (“Legal Requirements”), including the rules, regulations and binding interpretations of any Regulatory Authority. Such security measures shall include the use of up-to-date firewalls and virus detection software designed to prevent unauthorized access to Prio and Your Confidential Information, physical access controls and intrusion detection, and secure off-site backup and shall be at least commensurate with applicable industry standards. JCLAD shall not modify any of the foregoing in a way that degrades the level of security and protection available to Your Confidential Information or the systems used to provide Prio in any material respect without Your prior written consent. Without limitation of the foregoing, JCLAD shall use and process personal information (defined in JCLAD’s Online Privacy Policy) in accordance with applicable local, state, federal and foreign privacy, security and data protection legislation. For the purpose of these Terms of Use, “Regulatory Authority” means a governmental agency, authority, regulator or self-regulatory organization (to the extent such self-regulatory organization obtains authority by Legal Requirements or by contract, in the latter case in relation to mandatory terms) with jurisdiction over You or JCLAD.

12.2              Security Events. JCLAD shall notify You in writing within 24 hours of JCLAD first having reasonable suspicion of any unauthorized loss, transfer, acquisition, or misuse of Your Confidential Information.  JCLAD shall investigate the incident, take any actions that are necessary to mitigate resulting damage, and provide any consumer notices required by law as a result of such a security breach. You acknowledge that if Your Confidential Information has been disclosed to or accessed by an unauthorized party (a “Security Event”), Legal Requirements may require that JCLAD notify those persons whose personal information was disclosed that a Security Event has occurred.  JCLAD shall notify You promptly if it learns or has a reasonable basis to believe a Security Event has occurred. Unless otherwise required by a Legal Requirement, JCLAD shall not notify the persons affected until it first consults with You and You has had an opportunity to review (but not approve) any such notice.

12.3              Backup and Disaster Recovery.  JCLAD shall act in accordance with JCLAD’s Data Backup Plan and will maintain a disaster recovery plan that is at least commensurate with applicable industry standards, a copy of which shall be shown to You upon request, and which JCLAD shall test at least once per year.  Such plan shall include provision for a geographically remote disaster recovery facility, along with required hardware, software and Internet connectivity, in the event that JCLAD’s production facilities were to be rendered unavailable.

13.                 Miscellaneous.

13.1              Entire Agreement. These Terms of Use and any additional terms to which You agree in an Order Form or otherwise with respect to Prio (all of which are incorporated herein by reference) constitute the entire agreement between You and JCLAD pertaining to the subject matter hereof, and any and all written or oral agreements, understandings and representations, written or oral, previously existing between the parties are expressly canceled.

13.2              Notices. Any notice, request or communication required or permitted to be given under these Terms of Use will be in writing and will be deemed to be given when actually received if delivered personally or by facsimile or electronic mail, two (2) business days after the date deposited with the U.S. postal service if sent by certified or registered mail, or one (1) business day after the date delivered to a reputable next-day courier service. All notices to You will be sent to the address or email address designated by You on the applicable registration page or in the Order Form for Prio You have purchased.

13.3              No Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer will be void and without effect.

13.4              Relationship of the Parties. The parties are independent contractors and nothing in these Terms of Use will be construed as establishing a joint venture, partnership, employment or agency relationship between the parties.

13.5              No Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Use.

13.6              Choice of Law; Jurisdiction; Venue. These Terms of Use will be governed by and construed in accordance with the laws of the State of Colorado without regard to its conflicts of law provisions and expressly excluding the U.N. Convention on the International Sale of Goods. You agree that: (a) Prio will be deemed solely based in Colorado; and (b) Prio will be deemed a passive service that does not give rise to personal jurisdiction over JCLAD, either specific or general, in jurisdictions other than Colorado. All lawsuits arising from or relating to these Terms of Use or your use of Prio will be brought in the Federal or State courts located in Jefferson County, Colorado, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose.

13.7              Waiver; Severability; No Amendment. If any provision of these Terms of Use is held to be invalid, illegal or unenforceable, all remaining provisions will remain in full force and effect. These Terms of Use will be binding upon and inure to the benefit of the parties and their respective successors and assigns and may not be amended except by a writing signed by the duly authorized representatives of both parties. The failure of a party to require performance of any provision of these Terms of Use will in no manner affect its right to subsequently enforce the provision, and no delay or failure by either party to exercise any right or remedy will operate as a waiver thereof.

13.8              Conflict.  To the extent of any conflict or inconsistency between these Terms of Use and any Order Form or any other document related to the parties’ obligations hereunder, these Terms of Use will govern unless otherwise expressly agreed by the parties in writing. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other order documentation (excluding Order Forms) will be incorporated into or form any part of these Terms of Use, and all such terms or conditions will be null and void.

13.9              Interpretation.  The words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” and the words “such as”, “for example” “e.g.” and any derivatives thereof will mean by way of example and the items that follow these words will not be deemed an exhaustive list. The descriptive headings and labels of the articles, sections, and subsections of these Terms of Use are for convenience and reference only and will not affect these Terms of Use’s construction or interpretation.

13.10           Use by the Federal Government. With respect to use of Prio by or on behalf of the federal government, the technical data and software rights related to Prio provided by JCLAD include only those rights and licenses provided pursuant to these Terms of Use and are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202 (Commercial Computer Software or Computer Software Documentation).

14.                 Effective Date of Terms of Use. These Terms of Use are effective as of June 14 2014

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