Terms Of Service

Purpose

The following terms of service (“Terms of Service” or “Terms”) govern your use of the software and services provided by Prevail Legal, Inc. (including its subsidiaries, “Prevail Legal”, Company”, “we” or “us”). This is a legal agreement between you and Prevail Legal and incorporates the Prevail Legal Privacy Policy (available at https://prevail.ai/privacy) and any attached Exhibits. By registering your use of the Service (as defined below), you are accepting to be bound to these Terms of Service.

Definitions

“Administrator” shall mean a Subscriber (as defined in Section 1(f)) with authority to designate additional Authorized Users and/or Administrators and commit the Subscriber to additional services from Prevail Legal.
“Authorized User” shall mean an individual subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
“Confidential Information” shall mean the Content (as defined in Section 1(e)) and any information, technical data, or know-how considered proprietary or confidential by either party including, but not limited to, either party's research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after Subscriber's subscription to the Service, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party's premises.
“Content” shall mean any information you upload or post to the Service and any information provided by you to Prevail Legal in connection with the Service, including, without limitation, information about your Authorized Users.
“Service” shall mean any software or services provided by Prevail Legal, including but not limited to the Prevail Platform and Prevail Director Suite.
“Subscriber” shall refer to the user, with or without purchase, of the Services provided by Prevail Legal and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
“Security Emergency” shall mean a violation by Subscriber of these Terms that (i) could disrupt (A) Prevail Legal's provision of the Service; (B) the business of other subscribers to the Service; or (C) the network or servers used to provide the Service; or (ii) provides unauthorized third-party access to the Service.

Limited License & Use of the Service

Subscriber is granted a non-exclusive, non-transferable, limited license to access and use the Service.
Prevail Legal does not review or pre-screen the Content and Prevail Legal claims no intellectual property rights with respect to the Content.
Authorized Users agree not to reproduce, duplicate, copy, sell, resell, or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Prevail Legal.
Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Prevail Legal, or any other software or service provided by Prevail Legal.
Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of these Terms.
Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam,” short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
Except for the non-exclusive license granted pursuant to these Terms of Service, Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with Prevail Legal.
The Terms of Service are subject to amendment and revision as needed. When practical, we will provide you with reasonable advance notice and the opportunity to review the Terms of Service changes. We will publish the effective date of any and all revised versions of the Terms of Service. Any issues with or requests related to the policy that occur before the effective date of the amended Terms of Service will apply to the Terms of Service that were in effect on the operable date.
Prevail Legal uses one codebase for all jurisdictions. A Subscriber is required, using settings available within the Service, to configure the Service for its own jurisdiction and to verify that the settings meet the Subscriber's requirements. Prevail Legal will highlight known features that may require Subscriber review.

Access to the Service

Subscriber is only permitted to access and use the Service if he/she is an Authorized User. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
Each Authorized User will be provided with a uniquely identified account to access and use the Service. Each Account shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by, any other person, including other Authorized Users.
An Account Holder may also be the Owner of an enterprise account, referred to as an 'Organization,' within the Prevail platform. The Organization Owner holds the authority to administer permissions within the Organization and designate additional Authorized Users and/or Administrators. Each Organization can designate multiple Authorized Users as Administrators. An Administrator is deemed to have the authority to manage both the Organization and its Authorized Users. The Administrator will deactivate an active Username if they wish to terminate access to the Organization for any Authorized User. Account Holders are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
As between Prevail Legal and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. Upon Cancellation or Termination of Service as discussed in Section 10 below, Prevail Legal shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.
All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:

Any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by these Terms of Service;
Prevail Legal shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Prevail Legal has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;
Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. Prevail Legal, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Authorized User prior to suspension; and
Prevail Legal reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.

Confidentiality

Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under these Terms of Service, or to perform obligations under law.
Prevail Legal and any third-party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under these Terms of Service; (b) in compliance with Section 6 of these Terms, or (c) as otherwise authorized by you in writing.

Security and Access

Prevail Legal is responsible for providing a secure method of authentication and accessing its Service. Prevail Legal will provide mechanisms that:

allow for user password management
transmit passwords in a secure format
protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.

Subscriber will be responsible for protecting the security of usernames and passwords, or any other codes associated with the Service, and for the accuracy and adequacy of personal information provided to the Service.
Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords and will promptly notify Prevail Legal upon suspicion that a username and password has been lost, stolen, compromised, or misused.
At all times, Prevail Legal, and any third-party vendors and hosting partners it utilizes to provide the Service, will:

use information security standard industry practices for transmitting and storing your Content, adhering to industry standards;
employ information security standard industry practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability, and patch management;
ensure its host facilities maintain industry standards for security and privacy; and
within thirty (30) days of a request by Subscriber, provide Subscriber with a SOC2 audit report or industry standard successor report or a comparable description of its security measures in respect of the data center facilities used to host the Service and the Content. In order to obtain such a report, Subscriber must enter into an agreement with the third-party provider of the report.

Prevail Legal shall report to Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that Prevail Legal reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Subscriber's Content (a “Security Breach”). Prevail Legal shall make such report within 72 hours after learning of the Security Breach.
In the event of a Security Breach, Prevail Legal shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (d) use commercially reasonable endeavors to mitigate any harmful effect of the Security Breach.

Legal Compliance

Prevail Legal maintains that its primary duty is to protect the Content to the extent the law allows. Prevail Legal reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If Prevail Legal is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by these Terms, then Prevail Legal will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Prevail Legal may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.

Managed Backup and Archiving

Prevail Legal's managed backup services must be designed to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Prevail Legal shall ensure recovery of lost or corrupted Content at no cost to you. Following any cancellation or termination of Service for any reason, Subscriber shall have ninety (90) days to retrieve any and all Content.

Cancellation and Termination

Prevail Legal in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that (a) are in violation of these Terms and (b) create a Security Emergency.
If (i) Authorized Users use the Service to materially violate these Terms in a way that does not create a Security Emergency; and (ii) Prevail Legal provides Subscriber with commercially reasonable notice of this violation; and (iii) Prevail Legal uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Prevail Legal's reasonable satisfaction within thirty (30) days of such notice, then Prevail Legal reserves the right to immediately suspend access to the Service.

Limitation of Liability

Except in the case of a violation by Prevail Legal of its obligations under Section 4 above (“Confidentiality”), Section 5 above (“Security and Access”), and Section 7 above (“Managed Backup and Archiving”), and except as provided in Section 11.2 below (“Indemnification”), Prevail Legal shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Subscriber by Prevail Legal.
SUBSCRIBER AGREES THAT THE LIABILITY OF PREVAIL LEGAL ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO SUBSCRIBER'S SUBSCRIPTION WITHIN THE SIX-MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT PREVAIL LEGAL IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THESE TERMS. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER PREVAIL LEGAL HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 11.2. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PREVAIL LEGAL TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.
Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber's technology which occurs as a result of Subscriber's electronic equipment and/or Subscriber's computer system.

Disclaimer of Warranties

PREVAIL LEGAL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY PREVAIL LEGAL. NOTHING IN THIS SECTION 12.1 SHALL MODIFY PREVAIL LEGAL'S OBLIGATION TO INDEMNIFY SUBSCRIBER AS REQUIRED BY SECTION 11.2 OF THESE TERMS (“INDEMNIFICATION”).
Prevail Legal makes no warranty that its Services when provided to Subscriber in digital or electronic format will be compatible with Subscriber computer and/or other equipment, or that these Services will be secure or error free. Nor does Prevail Legal make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 10.2 shall modify Prevail Legal's obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or Prevail Legal's obligation to indemnify you as required by Section 11.2 of these Terms (“Indemnification”).
Prevail Legal hereby disclaims all warranties of any kind related to Subscriber's hardware or software beyond the warranties provided by the manufacturer of Subscriber's hardware or software.

Indemnification

Subscriber hereby agrees to defend, indemnify and hold harmless Prevail Legal from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost, or expense, including attorneys' fees, which arise from or relate to the following:

Authorized Users' breach of any obligation stated in these Terms of Service, and
Authorized Users' negligent acts or omissions.

Prevail Legal shall defend, indemnify, and hold Subscriber harmless against any loss, damage, or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued prior to the initial subscription by Subscriber to the Service, a trademark of a third party, or involves the misappropriation of any trade secret of a third party; provided, however, that Subscriber:(a) promptly gives written notice of the Claim to Prevail Legal; (b) gives Prevail Legal sole control of the defense and settlement of the Claim (provided that Prevail Legal may not settle any Claim unless it unconditionally releases Subscriber of all liability); and (c) provides to Prevail Legal, at Prevail Legal's cost, all reasonable assistance. Prevail Legal shall not be required to indemnify Subscriber in the event of: (x) modification of the Service by Subscriber in conflict with Subscriber's obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Prevail Legal to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by these Terms to the extent that the infringement or misappropriation would not have occurred but for such use.

Government Use

If the Service is being acquired on behalf of the United States Government (“USG”), then the following provision applies: This is commercial computer software. If acquired by or on behalf of an agency, department, or other entity of the USG, the use, duplication, reproduction, release, modification, disclosure, or transfer of this software, and any related documentation of any kind, including technical data or manuals no matter how received by the USG, is restricted by the terms and conditions of a license agreement in accordance with Federal Acquisition Regulation 12.212 for civilian agencies, and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. All other use is prohibited.

Miscellaneous

Technical support and training are available to Authorized Users with active subscriptions, and are available by telephone, email, or electronic support ticket, as defined at https://prevail.ai/contact.
Subscriber acknowledges and agrees that Prevail Legal may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
The Services may allow you to access or use or integrate with third party providers of products and services (“Third-Party Services”). Such Third-Party Services are not “Services” and are not subject to any terms related to Services, including related warranties, indemnities, service commitments or other obligations . The availability of any Third-Party Services through the Services does not imply Prevail Legal's endorsement of or affiliation with the provider. Access to and use of any Third-Party Services are subject to the separate terms and conditions required by the providers of the Third-Party Services. Prevail Legal does not control the Third-Party Services and will have no liability to Subscriber in connection with any Third-Party Service. Prevail Legal has no obligation to monitor or maintain any Third-Party Service and may replace, disable, or restrict access to any Third-Party Service or cancel related integrations at any time, without notice. BY USING OR ENABLING ANY THIRD-PARTY SERVICE, SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT ANY LIABILITY AND REMEDIES RELATED TO A THIRD-PARTY SERVICE IS WHOLLY GOVERNED BY THE APPLICABLE THIRD-PARTY AGREEMENT AND PREVAIL LEGAL DISCLAIMS ALL LIABILITY RELATED TO SUCH THIRD-PARTY SERVICE.
Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold Prevail Legal liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Prevail Legal, with strict business reasons, may access and transfer the Content and only provide Subscriber with the Service. Prevail Legal will make reasonable efforts to provide notice to Subscriber prior to such access and transfer. Prevail Legal's actions will comply with its obligations under Sections 4 and 5 of these Terms.
The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
These Terms constitute the entire agreement between Authorized Users and Prevail Legal and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Prevail Legal (including, but not limited to, any prior versions of these Terms).
Prevail Legal reserves the right to amend these Terms at any time. In the event of material changes to these Terms, Prevail Legal will notify Subscribers, by email, or by other reasonable means that changes have been made. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of any new, and/or updated, Terms.
Governing Law and Dispute Resolution. These Terms and your relationship with Prevail Legal shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of California and shall be considered to have been made and accepted in the State of California, without regard to its conflict of law provisions. For any dispute you have with Prevail Legal, you agree to first contact us at HR@prevail.ai and attempt to resolve the dispute with us informally. In the event that we are not been able to resolve your dispute, we each agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to these Terms of Service, or the breach or alleged breach thereof (collectively, “Arbitration Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA. The arbitration shall take place in San Diego, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party shall be entitled to recover costs and legal fees.

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