Terms and conditions

Pact Technologies, Inc.
Enterprise SaaS Terms of Service

PLEASE READ THESE ENTERPRISE SAAS TERMS OF SERVICE (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PACT TECHNOLOGIES, INC. (“PACT” OR “COMPANY”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH PACT WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), BY CLICKING THE “SUBMIT” BUTTON, OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS (TOGETHER WITH ALL ORDER FORMS, IF ANY, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PACT’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PACT SHALL BE DEEMED TO BE MUTUALLY EXECUTED. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.  USE OF PACT’S SERVICES IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.  

SERVICES AND SUPPORT

Upon mutual execution, each Order Form shall be incorporated into and form a part of this Agreement.  Subject to the terms and conditions of this Agreement (including any limitations and restrictions set forth on the Services, the Order Form (if any) and/or during the registration process), Company will provide Customer with access to the services ordered by Customer through Company’s website or, if an Order Form is mutually executed, the services specified in each such Order Form (collectively, the “Service” or “Services”) during the applicable term for the internal business purposes of Customer, only as provided herein and only in accordance with Company’s applicable official user documentation (the “Documentation”).  The Services are subject to modification from time to time at Company’s sole discretion, for any purpose deemed appropriate by Company.  

Company reserves the right, at its sole discretion, to modify or replace any of the provisions of this Agreement at any time by posting a notice on the Services or by sending Customer a written notice.  It is Customer’s responsibility to check this Agreement periodically for changes.  Customer’s continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes. 

Company will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week.  Notwithstanding the foregoing, Company reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Company.

Subject to the terms hereof, Company will provide reasonable support to Customer for the Services from Monday through Friday during Company’s normal business hours.

RESTRICTIONS AND RESPONSIBILITIES

Access to the Services may require the Customer to install certain software applications.  Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications.  

Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (vii) use the Services to build an application or product that is competitive with any Company product or service; or (viii) otherwise use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation). 

Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request.  Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.

Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.  Although Company has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Company may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 

Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

Customer further acknowledges, agrees to and is bound by the Privacy Policy on Company’s website (as they may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.

Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Company is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services.  Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof.  Company does not make any representations or warranties with respect to Third Party Services or any third party providers.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

CONFIDENTIALITY

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to  take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Company may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.

Customer acknowledges that Company does not wish to receive any Proprietary Information from Customer that is not necessary for Company to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Company may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

INTELLECTUAL PROPERTY RIGHTS

Company alone (and its licensors, where applicable) will retain all right, title and interest in and to the Services and Software,  and all software, products, works, and other intellectual property and moral rights related thereto or created, used or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing.  Customer may from time to time provide suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Service and/or the Software, which are hereby assigned to Company.  Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.  To the extent that any resulting work product relating to Customer’s use of the Services arises under this Agreement, such work product and related intellectual property rights will remain the sole and exclusive property of Company, and Customer is hereby granted a non-exclusive, nontransferable, revocable right to use such work product that is delivered to Customer for its internal analysis purposes only.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.  

Except as set forth herein, Company will obtain and process certain content, data, information or other material provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content.  If Company receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Company may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Company from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.  Customer acknowledges and agrees that Content may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent.  Notwithstanding anything to the contrary (including any confidentiality terms herein), Customer acknowledges and agrees that Company may (i) internally use and modify Content for the purposes of (A) providing the Services to Customer, (B) generating and using analytics based on the Content for Company’s internal business purposes and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Company’s business purposes (including, without limitation, for purposes of improving, testing, operating, promoting and marketing Company’s products and services).  “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Company in connection with Customer’s use of the Services, but only in aggregate and/or anonymized form which can in no way be linked specifically to Customer. 

Company shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Company, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Company from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from Company's indemnity obligation by the preceding sentence.

PAYMENT OF FEES

Customer will pay Company its then-standard fees for the Services as set forth on Company’s website at www.withpact.com/pricing, or, if an Order Form is mutually executed, the applicable fees as set forth on such Order Form (the “Fees”).  If Customer use of the Services exceeds the Service Capacity (if any) set forth on the Company’s website or an applicable Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Company’s website or such Order Form, as applicable, and Customer agrees to pay the additional fees without any right of set-off or deduction.  To the extent applicable, Customer will pay Company for additional services, such as integration fees or other consulting fees.  If not otherwise specified on an Order Form (if any), payments will be due within thirty (30) days of invoice and are nonrefundable.

Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any.  Customer agrees to pay such taxes (excluding US taxes based on Company's net income) unless Customer has provided Company with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Company on account thereof.

TERMINATION

Subject to earlier termination as provided below, this Agreement shall commence on the date Customer first accesses the Services or the Effective Date of a mutually executed Order Form (if any), whichever is earlier, and shall continue indefinitely.  Either party may terminate this Agreement for any reason or no reason upon thirty (30) days’ prior written notice to the other party, provided Customer shall remain responsible for all Fees incurred during such notice period. 

Either party may immediately terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability. 

CLIENT SOFTWARE SECURITY

Company represents and warrants that it will not knowingly include, in any Company software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud,  damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.  If, at any time, Company fails to comply with the warranty in this Section, Customer may promptly notify Company in writing of any such noncompliance.  Company will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.  If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.

WARRANTY DISCLAIMER

EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND COMPANY PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND.  COMPANY (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY

IN NO EVENT WILL  COMPANY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO COMPANY HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.  As defined in FAR section 2.101, any software and documentation provided by Company are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.  

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Company will not be liable for any loss resulting from a cause over which it does not have direct control.  This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions.  The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.  Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Company.  Company is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.