Last Updated on October 4, 2024
This Platform Terms of Service is entered into by and between Primer Labs, Inc. ("Primer") and the entity or person purchasing or accessing any Services ("Customer" or "you"). If you are purchasing or accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to access online software-as-a-service products and other services from Primer pursuant to any Primer online registration, order descriptions or order confirmations referencing this Platform Terms of Service (“Order(s)”) and sets forth the basic terms and conditions under which those products and services will be provided.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer's initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of Customer’s first Order.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
PLEASE NOTE: CERTAIN SERVICES MAY BE MADE AVAILABLE ON A SUBSCRIPTION BASIS. IF YOU SUBSCRIBE TO SUCH SERVICES FOR A SUBSCRIPTION TERM, THEN YOUR SUBSCRIPTION AND THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE BILLING PERIODS AT OUR THEN-CURRENT PRICING FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 5.1 BELOW.
PLEASE NOTE: SECTION 11.9 OF THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 11.9 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE AND HOW TO OPT OUT.
1.1. “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
1.2. “Agreement” means this Master Subscription Agreement, any Orders, and any attachments, linked policies, or documents referenced in the foregoing.
1.3 “Authorized Payment Method” means a current, valid, payment method accepted by Primer, as may be updated from time to time.
1.4. “Beta Services” means services or features identified as “alpha,” “beta,” “preview,” “early access,” or “evaluation,” or words or phrases with similar meanings.
1.5. “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.
1.6. "Connected Application” means Customer’s or a third party’s web-based, mobile, or other software application that is made available by Customer or its Users.
1.7. “Customer Data” means any data in electronic form that Customer or Users make available through the Platform.
1.8. “Documentation” means Primer's user guides and other end user documentation for the Services made available by Primer to its customers generally.
1.9. “Free Services” means Free Trials, Free Plans or other products and features made available by Primer on an unpaid trial or free basis.
1.10. “Fees” means any fees payable for the Services under the Order.
1.11. “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Primer's possession or reasonable control, and denial of service attacks.
1.12. “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.13. "Primer Materials" means all software, specifications, documentation and systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware and other technologies and inventions, technical or functional descriptions, requirements, plans or reports, that are provided or used by Primer in connection with the Services or otherwise comprise or relate to the Services or the Platform. Primer Materials do not include Customer Data or Third Party Data.
1.14. “Platform” means Primer’s proprietary platform of servers, software and technology used to provide the Services.
1.15. “Security Measures” means the technical and organizational safeguards.
1.16. “Services” means the services that Primer will provide to Customer under this Agreement as described in the Order.
1.17. “Users” means employees, agents, consultants or other representatives authorized by Customer to access or use the Services.
2.1. Account Registration. You will need to register for a Primer account in order to use the Services. You represent and warrant that (a) you are at least 18 years old and have the right, authority and capacity to enter into this Agreement, either on behalf of yourself or the entity that you represent, (b) all registration information that you submit is truthful and accurate and you will maintain the accuracy of such information. Once you have registered, it is your responsibility to keep your account credentials confidential. We will be entitled to assume that any person logging in using your account credentials is either you or someone doing so with your permission. You will be responsible and liable for any actions taken under your account credentials. You should notify us immediately if you suspect that anyone else knows your account credentials or that anyone has logged in as you. We may at any time and for any reason refuse to accept a registration from any person, in our sole discretion.
2.2 Accessing the Services. Subject to the terms and conditions set forth in this Agreement (including any Third-Party Terms) and the applicable Order, Primer grants to Customer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to access and use the Services during the Term for its lawful business purposes solely in the form provided by Primer and as permitted by the functionalities provided by Primer therein. The usage limits that apply to Customer, including without limitation, access to certain features, limits on number of audiences, maximum ad spend, exportable data, and available sources and destinations, may be designated from within the product itself and changed from time to time, at Primer’s sole discretion.
2.3. Primer Ownership. All rights and title in and to the Platform, the Services, Primer Materials and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Primer and its licensors. No rights are granted to Customer other than as expressly set forth in this Agreement.
2.4. Connected Applications. The Platform may contain features designed to interoperate with Connected Applications. To use such features, Customer or its Users may be required to obtain access to such Connected Applications from their providers, and grant Primer access to Customer’s or its Users’ account(s) on such Connected Applications. If Customer uses a Connected Application with the Services, Customer grants Primer permission to allow the Connected Application and its provider to access Customer Data solely as required for the interoperation of that Connected Application with the Services. Any acquisition by Customer of Connected Applications, and any exchange of Customer Data between Customer and any Connected Application provider, product or service, is solely between Customer and the applicable Connected Application provider. Primer does not warrant or support Connected Applications. Primer is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Connected Application or its provider.
2.5. Third Party Data. Customer may access certain data and fields (“Third Party Data”) made available by third party data partners (“Data Partners”) through the Platform. Any Third Party Data made available to Customer under this Agreement is subject to applicable additional terms and conditions governing access to and use of a Third Party Data, available at https://sayprimer.com/third-party-terms and incorporated by reference herein (“Data Partner Terms”). In the event of any conflict between the Data Partner Terms and any provision of this Agreement, the Data Partner Terms will prevail solely with respect to the applicable Third Party Data. Customer acknowledges and agrees that each Data Partner, not Primer, is solely responsible for providing its respective Third Party Data. Data Partner(s) and/or Primer may, in its sole discretion, modify, discontinue or deprecate the availability of Third Party Data on the Platform without further obligation or liability.
2.6 DMCA Policy. You acknowledge that information and content accessible through the Services may be protected by Intellectual Property Rights of third parties. The Services may contain links to websites or resources of others, however we do not endorse and are not responsible or liable for the accuracy, availability, content, products, or services of any third party. We will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. Such notices should be reported using our Digital Millennium Copyright Act (“DMCA”) Notice Process.
2.7. Free Services. Primer may, from time to time in its sole discretion, offer Services plans that do not require payment from Customer (“Free Plan”), or offer access to paid Services plans on a free trial basis for a limited period of time (“Free Trial”). At any time and without notice, Primer reserves the right to modify the terms and conditions of any Free Services, or cease to offer the Free Services.
2.7.1 Free Plans. Customers may cancel their Free Plan at any time prior to the end of the applicable subscription expiration date by following instructions in your account management settings. For Free Plans, Customer Data will be retained on the Services until Customer cancels their Free Plan in accordance with the terms hereof. Primer reserves the right to, with or without prior notice to Customer, delete accounts for Free Plans (and all related audiences and Customer Data contained therein) that have been inactive for more than 60 days.
2.7.2 Free Trials. If you register for a Free Trial, we will make the applicable Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription for the Services. If you do not purchase a paid subscription for the Services before the end of the free trial, Primer reserves the right to, with or without prior notice, delete all related audiences and all of your data at the end of the trial. If we include any additional terms and conditions on the trial registration web page, those terms are also applicable and incorporated by reference.
3.1. Customer Ownership. Except for the limited rights expressly granted to Primer hereunder, Customer retains all rights, title and interest in and to all Customer Data, including without limitation all related intellectual property rights inherent therein. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Primer so that Primer and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf.
3.2. Authorization. Customer grants Primer a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data (a) to maintain, provide, and improve the Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request, including processing initiated by Users through their use of the Platform; and (d) as otherwise required by applicable law. No rights to the Customer Data are granted to Primer hereunder other than as expressly set forth in this Agreement.
3.3. Security. Primer shall use commercially reasonable measures to maintain the security and integrity of the Services and the Customer Data and to provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Customer Data.
3.4. Excluded Data. Customer shall not provide Primer with any Customer Data that is subject to heightened security requirements by law or regulation or contract (examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), the Child’s Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), and their international equivalents (such Customer Data collectively, “Excluded Data”). Primer shall have no responsibility or liability for the Excluded Data.
3.5. Processing. When and as required by applicable law from time to time, if the Services include the processing of personally identifiable information contained within Customer Data, the parties hereby agree to the Data Processing Addendum.
4.1. Customer Restrictions. Customer and its Users shall not access or use the Services, Third Party Data or any Primer Materials for any purpose except the business-to-business sales, marketing, recruiting, or business development activities of Customer. Customer shall not access or use the Services, Primer Materials or any Third Party Data for the benefit of or on behalf of any person or entity except Customer. Subject to Customer’s compliance with this Agreement (including any applicable Data Partner Terms) and all applicable laws, rules, and regulations, Customer may use the Services to: (a) view the Primer Materials and any applicable Third Party Data; (b) communicate with any business contacts contained therein in a manner that relates to such person’s profession, business, or employment; and (c) identify prospective sales opportunities, research Customer’s existing customers and prospects, and otherwise analyze the Primer Materials and any applicable Third Party Data in a manner relating to Customer’s business-to-business sales, marketing, recruiting, and business development activities. Customer shall not permit anyone who is not a User to access or use the Services, including any Primer Materials, Third Party Data or any User login credentials. Customer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Services, Primer Materials or Third Party Data; (ii) reverse engineer the Services; (iii) access the Services, Primer Materials or Third Party Data in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (iv) use the Services, Primer Materials or Third Party Data to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Services, Primer Materials or Third Party Data to post or send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Services, Primer Materials or Third Party Data to access blocked services in violation of applicable laws; (vii) upload to the Services or use the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Services, Primer Materials or Third Party Data to run automated queries to web sites; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (x) attempt to gain unauthorized access to the Services, Primer Materials or Third Party Data or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services, Primer Materials or Third Party Data; (xii) without the express prior written consent of Primer, conduct any benchmarking or comparative study or analysis involving the Services, Primer Materials or Third Party Data for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Services to interoperate with Customer’s internal systems; (xiii) use the Services or any Primer Materials or Third Party Data (1) in connection with credit granting, credit monitoring, account review, collection, insurance underwriting, employment or for any other purpose covered by the FCRA, 15 USC Section 1681b, or any similar statute, (2) for any form of debt collection, (3) for hard background check purposes, (4) for a government license or benefit, or (5) for any purpose other than business-to-business marketing activities; or (ix) target advertisements to children under the age of thirteen or that, based on the overall content of the websites targeted for native advertising, is likely to attract children under the age of thirteen as its primary audience. In addition, Customer agrees that it shall (a) only permit access to the Services, Primer Materials and Third Party Data by Users; and (b) not access or use the Services from an embargoed nation or any other country/region that becomes an embargoed nation, in violation of applicable export compliance laws.
4.2. Customer Responsibilities.
4.2.1. Customer agrees and understands that (i) it is responsible for all activity of Users and for Users’ compliance with this Agreement (including any applicable Data Partner Terms); (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Services, and notify Primer promptly of any such unauthorized access or use; and (c) comply with all applicable laws in using the Services. The Services shall not include Customer’s access connection to the Internet or any equipment necessary for Customer to make such connection, which shall be Customer’s sole responsibility. Customer shall be responsible for supplying Primer with any technical data and other information Primer may reasonably request to allow Primer to provide the Services to Customer. Customer represents that it has obtained all consents necessary for Customer and Users to use the Services.4.2.2. Customer shall provide Primer with complete and accurate account, billing and payment information and keep such information up to date during the Term. Customer agrees not to provide any person or entity with access to the Services using Customer’s user name, password or other security information except as permitted under this Agreement and shall prevent Users from sharing their Primer account access or login information with any other party, including any other Customer employee or third-party contractor. Customer is responsible for maintaining the security and confidentiality of all passwords associated with Customer’s account. If Customer becomes aware of any unauthorized or illegal use of Customer’s account, Customer shall immediately notify Primer.
4.2.2. Customer shall provide Primer with complete and accurate account, billing and payment information and keep such information up to date during the Term. Customer agrees not to provide any person or entity with access to the Services using Customer’s user name, password or other security information except as permitted under this Agreement and shall prevent Users from sharing their Primer account access or login information with any other party, including any other Customer employee or third-party contractor. Customer is responsible for maintaining the security and confidentiality of all passwords associated with Customer’s account. If Customer becomes aware of any unauthorized or illegal use of Customer’s account, Customer shall immediately notify Primer.
4.3. Primer Rights.
4.3.1. Primer reserves the right to suspend Customer’s access to the Services in the event Primer believes Customer’s use of the Services represents an imminent threat to Primer’s users or network, or if so directed by a court or competent authority. In such cases, Primer will (i) suspend such the Services only to the extent reasonably necessary to prevent harm to Primer’s users or network; (ii) use its best efforts to promptly contact Customer and give Customer the opportunity to change the configuration of its server(s) accordingly and/or work with Customer to resolve the issues causing the suspension of such the Services; and (iii) reinstate any suspended the Services promptly after the issue is abated. Without limiting the foregoing, Primer reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Primer’s obligations regarding the Customer Data.
4.3.2. Primer shall have the right to (i) remove or limit distribution of Customer Data that Primer deems reasonably necessary or appropriate if Primer concludes that any Customer Data violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of any individual or could create liability for Primer; (ii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal use of the Services; and (iii) terminate or suspend Customer’s access to all or part of the Services for any violation of this Agreement. Notwithstanding the foregoing, Primer is not obligated to review Customer Data before it is posted via the Services, and Primer cannot ensure prompt removal of objectionable Customer Data after it has been posted. Accordingly, Primer assumes no liability for any action or inaction regarding transmissions, communications or content provided by Customer, any User or third party. Primer disclaims all liability or responsibility for exercise or nonexercise of its rights under this Section 4.3.2.
4.3.3. Primer shall have the right to (i) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services; (ii) utilize any information provided by or on behalf of Customer to the extent necessary to comply with any legal requirements; and (iii) utilize Customer Data, usage logs, and results to: (a) improve and perform quality control on Primer’s products and services; (b) provide analytics and benchmarking; and (c) generate and disclose aggregated statistics regarding the Services. The foregoing shall in no way limit Primer’s confidentiality obligations set forth in this Agreement.
5.1. Fees. Customer shall pay Primer the Fees set forth in an Order in accordance with this Section. Customer agrees and understands that if Customer does not pay Primer the Fees due for the Services at the billing frequency specified in the Order, Primer reserves the right to suspend Customer’s access and use of the Services until such Fees are paid as provided in Section 5.4. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. You may be required to pay additional Fees if (i) you exceed your applicable usage limits, including, but not limited to the number of audiences, maximum ad spend, exportable data, and available sources and destinations (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, or (iv) as otherwise mutually agreed to by the parties.
5.2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Primer's income.
5.3. Payment. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all applicable Fees, including without limitation any fees listed in the Order. You further authorize us to use a third party to process payments and consent to the disclosure of your payment information to such third party. If you are paying by invoice, we will invoice you in accordance with the relevant Order. Unless otherwise stated in an Order, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice. You will keep your Authorized Payment Method, contact information, and billing information up to date for the payment of incurred and recurring fees, as applicable. You authorize Primer to continue to charge your Authorized Payment Method for applicable Fees during your Services subscription term and until all outstanding Fees have been paid in full.
5.4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Primer may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. If such failure continues for five (5) days following written notice thereof, Primer may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.
6.1. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, (A) ALL SERVICES, PRIMER MATERIALS, AND ANY THIRD PARTY DATA ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER; (B) PRIMER AND DATA PARTNERS EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE; AND (C) PRIMER AND DATA PARTNERS MAKES NO WARRANTY REGARDING NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT SERVICES WILL BE ERROR-FREE.
6.2. Beta Services. Customer may choose to use Beta Services in its sole discretion. Notwithstanding anything to the contrary in this Agreement or otherwise: (a) Beta Services may not be supported and may be changed or terminated at any time without notice; (b) Beta Services may not be as reliable or available as the Services; (c) Beta Services have not been subjected to the same security requirements, measures, and auditing as the Services; (d) Beta Services constitute Primer’s Confidential Information; and (e) BETA SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY, INDEMNITY OR SUPPORT.
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Order hereunder), the Customer Data, the Primer Materials, Third Party Data and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either party may disclose Confidential Information to its personnel and agents who are subject to confidentiality obligations at least as restrictive as those of this Agreement. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
7.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
7.4. Remedies. If the Receiving Party breaches this Section, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
8.1. Agreement Term. The term of this Agreement shall commence on the Effective Date and continue until all Orders entered into hereunder have expired or been terminated.
8.2 Automatic Renewal. Unless a party cancels an Order for the Services in accordance with Section 8.3 below, each Order will automatically renew for additional periods of the same duration as the expiring Order billing term (each, a “Renewal Order Term”). Customer authorizes Primer to automatically change Customer’s payment method for the applicable fees on or after the start of each Renewal Order Term, unless the Order has been terminated or cancelled in accordance with this Agreement. Upon renewal, Primer may increase Fees up to our then-current rates.
8.3 Cancellation.
8.3.1 For paid Services plans, (a) Customer may opt out of automatic Order or subscription plan renewal at any time prior to the end of the relevant subscription plan or Order’s expiration date by following instructions in your account management settings, which termination will take effect at the end of the then-current billing cycle, or (b) Primer may opt-out of automatic subscription plan or Order renewal by notifying Customer of its intention not to renew an Order or subscription plan prior to the subscription plan or Order’s then-current expiration date. 8.3.2 For Free Plans, Customers may cancel their Free Plan in accordance with Section 2.8.1 above.
8.4. Termination for Material Breach. Either party may terminate this Agreement (i) if the other party materially breaches any terms and conditions of this Agreement and does not cure such breach within thirty (30) days of receiving notice of such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, this Agreement and any Order shall terminate automatically in the event Customer has breached any license restriction set forth in Sections 2.2 or 4.1 or applicable Data Partner Terms and, in Primer’s determination, that breach cannot be adequately cured.
8.5. Effect of Termination. Upon expiration or termination of this Agreement or the applicable Order for any reason, the rights and licenses granted to Customer shall terminate immediately and Primer reserves the right to delete or remove any audiences from Customer’s account. Without limiting the foregoing, following termination or expiration of this Agreement or the applicable Order, any ongoing use of audiences created using the Services for any purpose, including in third party advertising channels, will constitute a material breach of this Agreement and violation of Primer’s intellectual property rights. Any terms which by their nature are intended to survive termination of this Agreement and the following provisions shall survive the termination of this Agreement and all Orders: Section 1 (Definitions), Section 2.3 (Primer Ownership), Section 2.5 (Third Party Data), Section 2.6 (DMCA Policy), Section 3.1 (Customer Ownership), Section 4 (Restrictions, Responsibilities and Rights), Section 5 (Fees; Payment Terms), Section 6 (Disclaimer of Warranties; Beta Services), Section 7 (Confidential Information), Section 8.5 (Effect of Termination), Section 9 (Indemnity), Section 10 (Limitation of Liability), Section 11 (General Provisions), and any applicable Data Partner Terms.
9.1. Customer Indemnity. Primer will indemnify and hold Customer harmless from and against any third-party claim against Customer alleging that Customer’s use of the Services as permitted hereunder infringe or misappropriate a third party’s valid U.S. patent, copyright, trademark or trade secret. Primer shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Primer for such defense. If the Services, or parts thereof, become, or in Primer’s opinion may become, the subject of an infringement claim, Primer may, at its option: (a) procure for Customer the right to continue using the Services as set forth herein; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Primer, terminate this Agreement and refund Customer, on a pro-rated basis, any pre-paid Fees for any Services not received. This Section 9.1 states Primer’s entire liability and Customer’s sole remedy with respect to any infringement of intellectual property rights by the Services or Primer Materials.
9.2. Exceptions. Primer will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by any of the following “Excepted Claims”: (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Services by anyone other than Primer or its authorized agents; (iii) the combination, operation, or use of the Services with other hardware or software not provided by Primer or its authorized agents where the Services would not by itself be infringing; (iv) continued use of the allegedly infringing Service after being provided non-infringing alternative or after Primer has terminated the Agreement in accordance with Section 9.1 above; (v) any Customer Data or Third Party Data; or (vi) any breach of Customer’s obligations under this Agreement.
9.3. Primer Indemnity. Customer will indemnify and hold Primer harmless from and against any third-party claim against Primer that is subject to Section 9.2 above or arising from or related to (i) Customer’s violation of Section 4.1 of this Agreement or any applicable Data Partner Terms; (ii) any Customer Data; or (iii) any Excepted Claims.
9.4. Process. The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
10.1. Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
10.2. Limitation of Monetary Damages. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR ANY ORDER, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID TO Primer UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
10.3 NOTWITHSTANDING SECTIONS 10.1 OR 10.2 ABOVE OR ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, PRIMER’S AGGREGATE LIABILITY FOR ANY FREE SERVICES OR BETA PRODUCTS SHALL NOT EXCEED $50.
10.4. Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN DO NOT APPLY TO CUSTOMER'S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2.2 OR 4.1 OR OF ANY APPLICABLE DATA PARTNER TERMS AND WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW. NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others. You hereby waive any similar provision in law, regulation, or code that has the same intent or effect as the aforementioned provisions, including without limitation the New Jersey Truth In Consumer Contract, Warranty, and Notice Act.
11.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2. Notices. Primer may give general notices related to the Services that are applicable to all customers by email or through the Platform. All other notices required to be sent hereunder will be in writing and will be effective upon (i) personal delivery, or (ii) the second business day after mailing, in each case addressed as follows: if to Primer at 2 Embarcadero Ct., 8th Floor, San Francisco, CA 94110 United States to the attention of Legal Department, and, if to Customer, to Customer’s address on record in Primer’s account information, or to such other address or individual as the parties may specify from time to time by written notice to the other party.
11.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
11.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including any Orders), without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6. Subcontractors. Primer may use third-party subcontractors who are subject to contractual obligations no less protective than those of this Agreement, as applicable. Primer will remain responsible for their acts, omissions, and any subcontracted obligations.
11.7. Publicity. Primer may include Customer’s name and logo on its website or in other marketing materials or channels solely to reference Customer as Primer customer, and subject to any trademark usage instructions provided to Primer. Customer may revoke its approval at any time by contacting support@sayprimer.com.
11.8. Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.
11.9. Arbitration. Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Primer and limits the manner in which you can seek relief from us
11.9.1 Agreement to Arbitrate. You agree that any and all disputes or claims that have arisen or may arise between you and Primer, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Primer are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
11.9.2 Pre-Arbitration Dispute Resolution. Primer is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at contact@sayprimer.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Primer should be sent to 2 Embarcadero Center, 8th floor, San Francisco, CA 94111 ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Primer and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Primer may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Primer or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Primer is entitled.
11.9.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND PRIMER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PRIMER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
11.9.4 Waiver of Jury Trial. YOU AND PRIMER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Primer are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.9.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.9.5 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Primer and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, then the location of arbitration shall be San Francisco, California. If your claim is for $10,000 or less, Primer agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
11.9.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Primer may pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Primer may pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Primer may pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.
11.9.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
11.9.8 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Agreement will continue to apply.
11.9.9 One Year Limitations Period. You agree that any claim against Primer must be brought within one year of the date on which you first become aware, or reasonably should have become aware, of facts giving rise to such claim. You agree that this one-year limitations period is reasonable and that if you fail to provide notice of intent to initiate an informal dispute resolution conference within such time, your claim will be forever barred and may not be pursued against Primer, either in arbitration or a court.
11.9.10 Opt Out. Within 30 days of first accepting the Agreement containing this Arbitration Agreement, you can choose to reject this Arbitration Agreement by mailing us a written opt-out notice. The opt-out notice must be postmarked no later than 30 days after the date you accept this Arbitration Agreement for the first time. You must mail the opt-out notice to the Notice Address. The opt-out notice must include your name, address, phone number, and the email address(es) used to log in to the Services to which the opt-out applies, and can only be submitted on behalf of yourself. You agree to maintain your own copy of any opt-out request that you mail to Primer. Mass, group, collective, or consolidated opt-outs are not permitted. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have or may enter into with us. If you do not opt out of this Arbitration Agreement, but reject a future change to arbitration provisions, you agree that you will individually arbitrate any dispute in accordance with the language of this version of the Arbitration Agreement.
11.9.11 Court Proceedings. Subject to and without waiver of the Arbitration Agreement, you and we each submit to exclusive personal jurisdiction and agree that any judicial proceedings (other than small claims actions) will be brought in the federal courts of the Northern District of California or state courts located in the City and County of San Francisco, California.
11.10. Force Majeure. Except for payment obligations, neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.
11.10. No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.11. Export Control. The Services, Primer technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not, and shall not permit Users to, access or use the Services in violation of any U.S. export law or regulation.
11.12. Entire Agreement. This Agreement, including any applicable Data Partner Terms, all exhibits and addenda hereto and all Orders, sets forth the entire agreement of the parties and supersedes and replaces all prior or contemporaneous writings, negotiations and discussions, whether written or oral, with respect to its subject matter. Neither party has relied upon any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. Primer reserves the right to modify the terms and conditions of this Agreement, at its sole discretion, effective upon the commencement of any renewal subscription term. You are responsible for regularly reviewing this Agreement (including any applicable Data Partner Terms) for updates. CONTINUED USE OF THE SERVICES AFTER ANY SUCH CHANGES SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES. If Primer modifies this Agreement during Customer’s subscription term, and Customer objects to the updated agreement, as Customer’s exclusive remedy, Customer may choose to terminate this Agreement and cease using the Services. Notwithstanding any language to the contrary therein, no terms or conditions set forth on any Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
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