TERMS AND CONDITIONS OF USE

Welcome to our website. This site is maintained as a service to our customers. By using this site, you agree to comply with and be bound by the following terms and conditions of use. Please review these terms and conditions carefully. If you do not agree to these terms and conditions, you should not use this site.

1. Agreement. This Term of Use agreement (“the “Agreement”) specifies the Terms and Conditions for access to and use of the Priority Thinking website (the “Site”) including any content, functionality and services offered on or through www.alchemer.com, community.alchemer.com, app.alchemer.com and any other websites or mobile applications that post a link to these Terms of Use (collectively, the “Website”) and which are owned and operated by Alchemer. and describe the terms and conditions applicable to your access of and use of the Site. This Agreement may be modified at any time by Institute 4 Priority Thinking LLC (“Priority Thinking”) upon posting of the modified Agreement. Any such modifications shall be effective immediately. Each use by you shall constitute and be deemed your unconditional acceptance of this Agreement.  NOTE: Purchases made on through the Priority Thinking website are governed by our Services Agreement.
2. Privacy. Your visit to our site is also governed by our Privacy Policy. Please review our Privacy Policy.
3. Ownership. All content included on this site is and shall continue to be the property of Priority Thinking or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by you of any such content or any part of the Site is prohibited, except as expressly permitted in this Agreement. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this Site.
4. Intended Audience. This website is intended for adults only. This website is not intended for any children under the age of 13.
5. Trademarks. Priority Thinking^®, Leader Time^®, Educating Your Emotions^®, Getting it Right & Getting Along^® and many others are either trademarks or registered trademarks of Priority Thinking. Other product and company names mentioned on this Site may be trademarks of their respective owners.
6. Site Use. Priority Thinking grants you a limited, revocable, nonexclusive license to use this site solely for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the site, reverse engineer or break into the site, or use materials, products or services in violation of any law. The use of this website is at the discretion of Priority Thinking, and Priority Thinking may terminate your use of this website at any time.
7. Compliance with Laws. You agree to comply with all applicable laws regarding your use of the website. You further agreed that information provided by you is truthful and accurate to the best of your knowledge.
8. Indemnification. You agree to indemnify, defend and hold Priority Thinking and our partners, employees, and affiliates, harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of this Agreement or use of the Site.
9. Disclaimer. THE INFORMATION ON THIS SITE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. YOU AGREE THAT USE OF THIS SITE IS AT YOUR SOLE RISK. PRIORITY THINKING DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SITE SHALL BE TO DISCONTINUE USING THE SITE.
10. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL PRIORITY THINKING BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE SITE, YOUR SITE USE, OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR CONTENT IS TO CEASE ALL OF YOUR SITE USE.

You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in this Agreement that directly conflict with such laws may not apply to you.

11. Use of Information. Priority Thinking reserves the right, and you authorize us, to use and assign all information regarding site uses by you and all information provided by you in any manner consistent with our Privacy Policy.
12. Copyrights and Copyright Agent. If you believe your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our Copyright Agent:
    1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
    2. A description of the copyrighted work that you claim has been infringed;
    3. A description of where the material that you claim is infringing is located on the Site;
    4. Your address, telephone number, and e-mail address;
    5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
    6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Our Copyright Agent for Notice of claims of copyright infringement on the Site is Grigio Services LLC, who can be reached as follows:

By Mail: 40 Cobbles Drive, Penfield, NY 14526

By Phone: 585-208-4502

By E-mail: jlyle@grigioservices.com

13. Applicable Law. You agree that the laws of the state of New York, without regard to conflicts of laws provisions will govern these Terms and Condition of Use and any dispute that may arise between you and Priority Thinking or its affiliates.
14. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
15. Waiver. The failure of Priority Thinking to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any waiver of this Agreement by Priority Thinking must be in writing and signed by an authorized representative of Priority Thinking.
16. Termination. Priority Thinking may terminate this Agreement at any time, with or without notice, for any reason.
17. Relationship of the Parties. Nothing contained in this Agreement or your use of the Site shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
18. Entire Agreement. This Terms of Use constitutes the entire agreement between you and Priority Thinking and governs the terms and conditions of your use of the Site, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Priority Thinking with respect to this Site. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies (including but not limited to the Privacy Policy), guidelines, or rules that may apply when you use the website. Priority Thinking may revise this Terms of Use at any time by updating this Agreement and posting it on the Site.  Accordingly, you should visit the Site and review the Terms of Use periodically to determine if any changes have been made. Your continued use of this website after any changes have been made to the Terms of Use signifies and confirms your acceptance of any such changes or amendments to the Terms of Use.
19. Contact Information.

Priority Thinking, LLC

151 Howell Street, A, Canandaigua, NY 14424

585-388-2040

support@prioritythinking.com

CLIENT AGREEMENT

This Client Agreement (“Agreement”) is between Institute 4 Priority Thinking, LLC (“PT”) and Client:

1. License. PT grants to Client a non-exclusive, non-transferable, limited right to access and use one or more PT Services (“Product(s)”) described in the applicable PT proposal(s) (“Proposal(s)”), the terms of which are incorporated herein.  Client agrees to and shall comply with, and shall ensure that Participants (as defined below) agree to and comply with, the terms of this Agreement and any other applicable terms and conditions governing website access set forth on and referenced as part of the Terms of Service set forth in this Agreement.  Client’s use of the Services constitutes acceptance of all terms and conditions contained herein.  Client agrees to keep the terms of this Agreement confidential and agrees to not disclose, either directly or indirectly, such terms.
2. Authorized Participants. Electronic Services such as our PT survey platform, Priority Zone resource portals, or from a third party such as the Hezel CultureSmart assessment system, may be accessed and used only by individuals authorized by PT (“Participant (s)”).  Participants must be (a) Client’s employees or authorized agents, or (b) temporary staff or contractors (“Contractor(s)”).  Access to and use of the electronic Services by Contractors shall be (i) limited to the period of Client’s engagement of the Contractor and (ii) for the sole purpose of the Contractor providing services to Client.  Access and use by any other third party is not permitted.  Client will provide to PT, upon request, the names and addresses of each Participant.
3. Term and Termination. The term of this Agreement will begin on the date the Proposal(s) incorporated in this Agreement is signed, and terminate upon (i) the completion of services outlined in the Proposal(s), (ii) the exhaustion of the budget identified in the Proposal(s), or (iii) or 72-hour advanced written notice (and confirmed receipt) by either party, whichever comes first.
4. Payments. Client will be invoiced at the end of each month during the term of the Agreement. Payment is due net 30 days from Client’s receipt of the invoice, and must be made by cash, check or direct deposit. PT reserves the right to charge a late payment fee of 3% per month or the maximum rate permitted by law, whichever is less, for balances outstanding for more than 45 days. Purchase orders, if required, should be put in place in advance.
5. Taxes. Our relationship to you is one of an independent contractor; it is not an employment, partnership or agency relationship. As an independent contractor, we will be exclusively responsible for the payment of all taxes incidental to the compensation paid for the services we perform for you.
6. Confidentiality. Each of PT and Client agrees to use a commercially reasonable standard of care to maintain the confidentiality of the Confidential Information of the other party. The obligation to maintain confidentiality survives the termination of this agreement in perpetuity. Without limiting the generality of the foregoing, “Confidential Information” includes any and all information relating to the disclosing party’s products, services, research, development, trade secrets, marketing and business plans, strategies, customers, suppliers, employees, agents, management and personnel, but does not include information in the public domain other than by reason of a breach of this Agreement. In the event the receiving party receives a subpoena or court order to disclose any Confidential Information, the receiving party shall deliver prompt written notice to the disclosing party and shall cooperate with the disclosing party’s attempts to obtain a protective order or other similar protection for the Confidential Information.
7. Copyright. Each Product contains proprietary content and/or software protected by copyright and other similar laws.  PT and its licensors retain all rights in the Services, including (without limitation) all copyright and other proprietary rights worldwide in all media.
8. Permitted Uses. Participants may access and use the Services solely for their own internal business purposes as permitted herein and by U.S. copyright laws.  The rights granted herein are an expansion of the limited rights granted under the Copyright Act, and are subject to revision by PT.  Participants shall not share content from the Services, including User names and passwords.  Client agrees to notify PT promptly in writing of any known or suspected unauthorized use of the Services or any known or suspected breach of security, including but not limited to, loss, theft, or unauthorized disclosure of User names and passwords.
9. Restrictions. In no event may Client or a User copy or distribute any content from the Services in its entirety, or systematically, routinely or regularly, copy and/or redistribute copies of individual articles, workbooks, presentations, reports, or other PT materials, even if Client holds a copyright license with a third party licensing service (e.g., Copyright Clearance Center).  Client and Participants may not reproduce, create derivative works from, perform, publish, transmit, distribute, sell (or participate in any sale), or otherwise access, use, or exploit any material received through or contained in the Services in any manner whatsoever that may infringe any copyright or proprietary interest of PT or any third party; distribute the information contained in the Services to any person who is not duly authorized to use or receive the Services; distribute, rent, sublicense, lease, transfer or assign the Services or this Agreement; decompile, disassemble, or otherwise reverse-engineer the Services, or alter, translate, modify, or adapt the Services to create derivative works; make use of “framing” or other means of redirecting content; place or install any portion of the Services on any electronic media, including, but not limited to, local or wide area networks or intranets, timesharing services, multiple processing units, multiple site arrangements, service or software rental bureaus, list servers, online services, electronic bulletin boards or forums, websites, or any other server that is Internet-enabled.  Notwithstanding anything to the contrary in this Agreement, if PT believes, in its sole good faith judgment, that any provision of this Agreement has been breached by Client or a User, PT reserves the right to suspend access to and use of the Services, or any portion thereof or content therein, at any time without notice effective immediately.
10. Ownership of Work Product. PT alone shall own all right, title and interest, including all related intellectual property rights such as copyright throughout the world and moral rights, to all course materials, manuals, documents, memoranda, materials, Web content, artwork, graphics and other work product we create or develop in the course of providing Services for Client (“Work Product”). At Client’s request, PT shall execute and deliver to Client any and all instruments prepared by Client at Client’s sole expense, and assign and transfer to Client all of PT’s right, title and interest in and to those instruments.
11. Disclaimer of Professional Advice.The information provided through the Services is not and shall not be construed as tax, accounting, legal, regulatory or other professional advice or sufficient to satisfy any tax, accounting, legal, regulatory or other professional requirements.  Client and/or each Participant should consult tax, accounting, legal, regulatory or other professional advisor(s) for advice.
12. Performance Warranty; Limited Warranty.
    1. Performance Warranty: PT cares about its reputation and pledges to:
       1. Use its reasonable best efforts to perform its Services;
       2. Perform those services with a high degree of care, skill, diligence, professional knowledge, judgment, and expertise;
       3. Do so in a well-managed, organized, and efficient manner. Nevertheless, there are many different elements factoring into the success of PT’s relationship with Client, so there can be no guarantee that Client will be satisfied with the results of PT’s performance, or that any particular results will be achieved by Client.
    2. Limited Warranty. The Performance Warranty above is the EXCLUSIVE WARRANTY given by PT and supersedes any prior representations, whether oral or written. THE PERFORMANCE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability. PT accepts liability for loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by Client in consequence of any gross negligence on PT’s part in connection with PT’s provision of Services under this Agreement. Client agrees to defend, indemnify and hold PT harmless from and against all other claims, damages, losses, liabilities, costs, and expenses arising out of or relating to any work performed for Client by PT under this Agreement, or violation of any applicable law, regulation, or order. OTHER THAN PT’S GROSS NEGLIGENCE, THERE ARE NO CIRCUMSTANCES UNDER WHICH PT, ITS AFFILIATES AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS SHALL BE LIABLE FOR ANY ACTUAL OR POTENTIAL DAMAGE THAT MAY BE CA– USED TO CLIENT INCLUDING WITHOUT LIMITATION, ANY LOSS OF MONEY, GOODWILL, REPUTATION, SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM WORK PT PERFORMS FOR CLIENT. IN ANY EVENT AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION, TO THE EXTENT PERMITTED BY LAW, CLIENT AGREES THAT PT’S TOTAL LIABILITY TO PT FOR ALL DAMAGES AND LOSSES ARISING FROM PT’S PERFORMANCE OF WORK WILL BE LIMITED TO THE AMOUNTS CLIENT ACTUALLY PAID TO PT FOR WORK ACTUALLY PERFORMED.
14. Reasonable Use of Client Name. PT reserves the right, with Client’s express prior approval, to make reasonable use of Client’s name, logo, or trademark in conjunction with PT’s present and future marketing efforts.
15. Force Majeure. PT shall not be liable for failure to perform any part of this Agreement where such failure is due to fire, flood, power outages, strikes, war (declared or undeclared), acts of terror, embargoes, blockages, legal restrictions, governmental regulations or orders, riots, insurrections, Act of God, or any cause beyond the control of PT.  In such event, PT shall use reasonable efforts to resume performance.  This Agreement shall not be regarded as terminated or frustrated as a result of such failure of performance not exceeding one (1) month and the parties shall proceed under this Agreement when the causes of such non-performance have ceased or have been eliminated.
16. Notices. Notice under this Agreement shall be made in writing; sent via certified mail, return receipt requested, or a nationally recognized overnight courier service; effective upon receipt at the address stated below; and addressed as follows:  If to PT, to General Counsel, 151 Howell Street, A, Canandaigua, New York 14424.  If to Client, to the designated billing contact and address.
17. Miscellaneous Provisions.
    1. No Waiver.  Should PT or any Client fail to exercise or enforce any provision of this Agreement or to waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.
    2. Choice of Law.  This Agreement shall for all purposes be governed and construed in accordance with the law of the New York without regard to its choice-of-law rules.  The parties, and their successors and assigns, agree to submit to the jurisdiction of each of the federal and state courts located in Monroe County, New York, in connection with any matters arising out of or relating to this Agreement, and waive any objection to such venue, including forum non conveniens, sovereign immunity, Act of State or analogous doctrines.
    3. Entire Agreement. Unless otherwise specified in the applicable Proposal, this Agreement, as it may be amended from time to time, constitutes the entire agreement between each Client and PT, and supersedes all prior or contemporaneous writings, discussions, agreements, and understandings of any kind, with respect to the subject matter of this Agreement.
    4. Severability.  If any provision of this Agreement is held to be unenforceable, the parties shall renegotiate those provisions in good faith to be valid, enforceable substitute provisions, which provisions shall reflect as closely as possible the intent of the original provisions of this Agreement.  If the parties fail to negotiate a substitute provision, this Agreement will continue in full force and effect without that provision and will be interpreted to reflect the original intent of the parties.
    5. Each Party Acting Independently.  PT and Client agree that each is acting independently of the other, that they are not joint venturers, and that neither is an agent, partner, or joint venturer of the other.
    6. Amendment.  Except as otherwise expressly set forth herein, neither this Agreement nor any Proposal shall be changed, modified or amended except by a writing signed by a duly authorized representative of PT and the Client.
    7. Headings and Cross-References.  The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the scope, meaning or intent of the provisions of this Agreement.

Updated April 2016

SERVICES AGREEMENT

This Services Agreement is effective on the date of Customer Purchase per the Customer Order Form (the “Effective Date”) between Customer, and Institute 4 Priority Thinking LLC (“Priority Thinking”) with offices located at 151 Howell Street, A, Canandaigua, NY 14424. The Customer and Priority Thinking are sometimes collectively referred to herein as the “Parties” and individually as a “Party”.

Customer wishes to be provided with the Services (as defined below) by Priority Thinking and Priority Thinking agrees to provide the Services to the Customer in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:

1. Services:
   1. The Customer hereby retains Priority Thinking to provide Customer access to and use of Priority Thinking’s hosted survey platform (aka, “Admin Console”) made available as software as a service, and other related support services described in the Customer Order Form at the time of purchase. Priority Thinking may also provide certain other training, consulting, programming, or other professional services as described in the Customer Order Form at the time of purchase. Upon full execution of a Customer Order Form, such Customer Order Form will become a part of this Agreement, subject to all of its terms and conditions.
   2. Access Rights. Subject to Customer’s compliance with the terms and conditions of this Agreement, Priority Thinking grants to Customer, during the Term, a non-exclusive, non-transferable, worldwide right to access and use the Admin Console as set forth in this Agreement, for the purpose of permitting Customer to collect, process and analyze online data surveys.
   3. Subcontractors. Customer acknowledges and agrees that Priority Thinking may use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event Priority Thinking utilizes subcontractors or consultants to perform any of the Services, Priority Thinking shall remain responsible to Customer for performance under this Agreement.
2. Fees and Expenses
   1. Fees. As full consideration for the provision of the Services, Customer shall pay Priority Thinking fees in the amount identified in the Customer Order Form (the “Fees”).
   2. Billing and Payment. Customer shall pay immediately upon approval of the Customer Order Form. Priority Thinking shall prepare and submit invoices to the Customer via mail, email, facsimile, or online transmission for all Services performed as defined in the Customer Order Form. Customer will pay invoices in U.S. dollars as defined in the Customer Order Form days of the date of Priority Thinking’s invoice. Payments due hereunder must be made by credit card, wire transfer, certified check, bank check or such other method as may be agreed upon by Priority Thinking. Customer shall have no right of offset or withholding under this Agreement. Any amounts not paid by Customer when due to Priority Thinking shall be subject to interest charges, from the date due until paid, at the rate of Prime + 2%, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Priority Thinking from Customer becomes past due for any reason, Priority Thinking may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Priority Thinking’s obligations under this Agreement.
   3. Customer is Responsible for Taxes.  All Fees and other amounts payable by Customer to Priority Thinking under this Agreement are exclusive of any tax, levy or similar governmental charge including value-added, sales, use, or withholding taxes, that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, sale or use of the SaaS, the Services, or otherwise arising out of this Agreement, including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with the transactions contemplated hereunder, except that Customer shall have no liability for any income taxes assessed on Priority Thinking on amounts paid by Customer under this Agreement. If Priority Thinking has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Priority Thinking will invoice Customer and Customer will pay that amount unless Customer provides Priority Thinking with a valid tax exemption certificate, including a valid value-added tax number, authorized by the appropriate taxing authority
   4. Compliance with Laws; Permits and Licenses. Both Parties agree, at their own expense, to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. Each Party will obtain and maintain in force, at its own expense, all licenses, permits and approvals required for its performance under this Agreement, and will obtain all required inspections, authorizations and approvals prior to commencement of the Services
3. Warranty.  Priority Thinking does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Priority Thinking warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. Priority Thinking shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder.LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 3​ IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM.

   PRIORITY THINKING DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. PRIORITY THINKING SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO THE CUSTOMER BY PRIORITY THINKING DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY S.O.W. OR OTHERWISE, EXCEPT IF SUCH THIRD-PARTY SERVICES ARE PROVIDED UNDER WRITTEN AGREEMENT WITH PRIORITY THINKING.

   CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS RE-PERFORMANCE OF THE SERVICES, OR IF RE-PERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.

4. Customer Obligations.  Customer represents and warrants that (a) Customer has the necessary rights and licenses required to collect and provide its Response Data and Content to Priority Thinking in connection with the Admin Console, and (b) its collection and use of Response Data and Content does not violate any intellectual property rights or privacy rights of third parties, confidential relationships, applicable privacy policies or other contractual obligations, or federal, state or local laws or regulations. Customer is responsible for all actions with respect to personally identifiable information of persons that respond to Customer’s surveys or to whom Customer sends surveys.
5. Ownership of Work Product. Priority Thinking acknowledges and agrees that Customer shall retain and own all right, title and interest and all intellectual property rights in and to the Response Data and Content. Customer acknowledges and agrees that Priority Thinking shall retain and own all right, title and interest and all intellectual property rights in and to the Admin Console, the Project Deliverables, and all materials used by Priority Thinking to provide the Admin Console and Project Deliverables, and all copies thereof and customizations and modifications thereto (collectively, the “Priority Thinking Materials”). Except for the limited access rights set forth in Section 1(b) (Access Rights) above, nothing herein transfers or conveys to Customer any right, title or interest in or to the Priority Thinking Materials.  Priority Thinking reserves all rights in and to the Priority Thinking Materials not expressly granted herein.
6. Right to Modify the Admin Console; Use of Customer Feedback. Priority Thinking may from time to time, in its sole discretion, change some or all of the functionality or any component of the Admin Console.  If Customer suggests or recommends any new features, functionality or any other changes to the Admin Console, Priority Thinking is free to use such suggestions and recommendations, without any attribution or compensation to any party.
7. Confidential Information. The Parties acknowledge that for the purpose of the performance of this Agreement and the provision of the Services hereunder, one Party may disclose to the other confidential and/or sensitive information (“Confidential Information”). The Party disclosing information is referred to as the “Disclosing Party” and the Party receiving information as the “Receiving Party.” For the purpose of this Agreement, “Confidential Information” shall mean all information disclosed by the Disclosing Party to the Receiving Party during the Term of this Agreement which is non-public and either proprietary or confidential in nature and related to the Disclosing Party’s business or activities, including, but not limited to financial, legal, technical, marketing, sales and business information, which is (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to only its employees, subcontractors, consultants and representatives who have a need to know such information to fulfill the transactions between the Parties contemplated by this Agreement. The term of confidentiality shall be 3 years from the initial date of disclosure of the Confidential Information. These confidentiality obligations shall not apply to any information or development which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the other party; (iii) is developed through the independent efforts of the receiving party; or (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use. In no event shall Priority Thinking’s use or disclosure of information regarding or relating to the development, improvement or use of any of Priority Thinking’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
8. Indemnification.  Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all third party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s gross negligence or willful misconduct. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). Notwithstanding the foregoing, Priority Thinking will have no obligation under this Section or otherwise with respect to any infringement claim based upon:  (a) any use of the Admin Console not in accordance with this Agreement; (b) any use of the Admin Console in combination with products, equipment, software, or data not supplied or approved by Priority Thinking if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the Admin Console by any person other than Priority Thinking or its authorized agents or subcontractors.  Further, this indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.SECTION 8​ STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
9. LIMITATION OF LIABILITY; ACTIONS.  EXCEPT FOR THE PARTIES CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 8​ OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE CUSTOMER’S OBLIGATION TO PAY THE FEES TO PRIORITY THINKING, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO PRIORITY THINKING UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.

   NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.

10. Term. This Agreement shall commence on the Effective Date and thereafter shall remain in effect until terminated by either Party as set forth in Section 10 of the Agreement.
11. Termination
    1. Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, 10 calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after 10 days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
    2. Termination for Bankruptcy, Insolvency or Financial Insecurity. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within 90 calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
    3. Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay Priority Thinking for all Services rendered prior to the effective date of termination. Upon termination each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination. Upon the termination of the Agreement, the Customer shall promptly return to Priority Thinking any equipment, materials or other property of Priority Thinking relating to the terminated Services which are in Customer’s possession or control.
12. Publicity.  Customer consents to Priority Thinking’s use of Customer’s name and/or logo on Priority Thinking’s website and/or in its marketing materials, for the sole purpose of identifying Customer as a user of the Admin Console or other Priority Thinking Services.
13. Use of Proprietary Marks.  Customer shall not use any trademark, service mark, logo, product name, or company name of Priority Thinking (collectively “Priority Thinking Proprietary Marks”) without Priority Thinking’s express prior written consent in each instance.  Provided that Priority Thinking provides written approval of Customer’s requested use of Priority Thinking Proprietary Marks, Customer shall, in addition to any other instructions or requirements provided by Priority Thinking with such consent: (a) refer to Priority Thinking LLC as the owner of the Priority Thinking Proprietary Marks; and (b) not use the Priority Thinking Proprietary Marks in a manner that, in Priority Thinking’s sole judgement, is likely to harm the goodwill or reputation associated with the Priority Thinking Proprietary Marks. Notwithstanding any provision to the contrary herein, Priority Thinking may at any time require Customer to discontinue its use of Priority Thinking Proprietary Marks.  No ownership interest or other rights in or to the Priority Thinking Proprietary Marks shall transfer to Customer by virtue of its use of the Priority Thinking Proprietary Marks hereunder, and any such use of the Priority Thinking Proprietary Marks by Customer, as permitted under this Agreement, shall inure to the benefit of Priority Thinking.  Priority Thinking reserves all rights in and to the Priority Thinking Proprietary Marks not expressly granted herein.
14. Service Videos.  Customer consents to Priority Thinking recording and screen-casting its support sessions with Customer, solely for purposes of enabling Priority Thinking’s provision of support to Customer and its creation of step-by-step videos specific to Customer’s Admin Console- or other Service-related issues.
15. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within 3 business days of its occurrence.
16. Arbitration. Any dispute, controversy or claim arising out of or related in any manner to this Agreement which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by JAMS in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before 1 arbitrator sitting in or near Monroe County, New York. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of New York. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the Parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, incidental damages, special damages, exemplary, punitive damages or specific performance. Each Party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except that a Party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction if in its reasonable judgment such action is necessary to avoid irreparable harm. THE PARTIES HEREBY RECOGNIZE THAT AGREEMENT TO THE ARBITRATION CLAUSE CONSTITUTES OF A WAIVER OF THE RIGHT TO A TRIAL BY JURY.
17. Collection Expenses. If Priority Thinking incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Customer agrees to reimburse Priority Thinking for all such costs, expenses and fees.
18. Assignment; No Third-Party Beneficiaries. Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to this Agreement.
19. Severability. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
20. Headings; Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
21. Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
22. Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
23. Authorized Signatories. It is agreed and warranted by the Parties that the individuals entering into this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
24. Notices. All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
    Customer, at the address provided in the Customer Order Form
    Priority Thinking
    Attention: Director of Legal Affairs
    151 Howell Street, A
    Canandaigua, New York 1424
25. Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
26. Entire Agreement; Modification. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.