Effective date: 9/22/2022
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PARED, INC. (“COMPANY”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “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.
1. Order Forms; Access to the Service
Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) COMPANY grants Customer the right and license to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with COMPANY’s applicable official user documentation (the “Documentation”).
Upon payment of any applicable fees set forth in each Order Form, COMPANY agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If COMPANY provides Implementation Assistance in excess of any agreed-upon hours estimate, or if COMPANY otherwise provides additional services beyond those agreed in an Order Form, Customer will pay COMPANY at its then-current hourly rates for consultation.
3. Support; Service Levels
COMPANY will provide support and uptime for the Service in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) COMPANY’s then-current standard Support and Availability Policy set forth at the attached COMPANY Support and Available Policy.
4. Service Updates
From time to time, COMPANY may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that COMPANY shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that COMPANY may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that COMPANY shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
5. Ownership; Feedback
As between the parties, COMPANY retains all right, title, and interest in and to the Services, 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. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to COMPANY with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for COMPANY notwithstanding anything else. Customer shall, and hereby does, grant to COMPANY a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair COMPANY’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
6. Fees; Payment
Customer shall pay COMPANY fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced Quarterly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on COMPANY’s net income). All Fees paid are non-refundable and are not subject to set-off.
Except as expressly set forth in this Agreement, Customer shall not knowingly (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any COMPANY product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures COMPANY may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
8. Confidentiality; Customer Data; Publicity
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, (i) 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 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.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Other than the rights granted to Company hereunder, Customer grants no, and reserves any and all, rights in the Customer Data. Company will not remove, obscure, or alter any intellectual property rights notices relating to the Customer Data. Customer, not COMPANY, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. COMPANY shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. COMPANY is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to COMPANY’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that COMPANY may (i) internally use and modify (but not disclose) Customer Data for the solely purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data solely 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 Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer or any individual. Notwithstanding anything else, COMPANY is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials). Any use of Customer’s intellectual property, other than displaying Customer’s logo as a customer, shall be subject to Customer’s prior written approval.
To the extent that the California Consumer Privacy Act of 2018 (the “CCPA,” which shall include all implementing regulations and any successor or replacement legislation) is applicable, Company agrees that it is a “Service Provider” for Customer as defined in the CCPA, and that Company shall not (i) sell (as defined in the CCPA) any information that constitutes personal information as defined in the CCPA; (ii) retain, use, or disclose any such personal information for any purpose other than the specific business purpose as specified in this Agreement; or (iii) retain, use, or disclose such personal information outside of our direct business relationship unless to another service provider as a subcontractor, where the subcontractor also meets the requirements for a “Service Provider” under the CCPA.
9. Term; Termination
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, COMPANY may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with COMPANY’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) COMPANY shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, COMPANY shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) COMPANY shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, officers, directors, and agents (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of COMPANY as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of COMPANY do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by COMPANY (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by COMPANY, (iv) combined with other products, processes or materials not provided by COMPANY (where the alleged Losses arise from or relate 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) Customer’s use of the Service is not strictly in accordance herewith. Customer will have no liability or obligation under this section 10 to the extent the applicable Losses arise from (i) modification of any Customer Data by any party other than Customer without Customer’s express consent; (ii) the combination, operation, or use of the Customer Data with other product(s), data or services where the Customer Data would not by itself be infringing; or (iii) unauthorized or improper use of the Customer Data.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
12. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO COMPANY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS.
This Agreement represents the entire agreement between Customer and COMPANY with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and COMPANY with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) COMPANY may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
Pared Support and Availability Policy
This Support, Security and Availability Policy (the “Policy”) sets forth the policies and procedures with respect to services (the “Service”) provided by COMPANY to a customer (“Customer”) pursuant to a separate Service agreement between COMPANY and Customer (a “Customer Agreement”).
As further described below, COMPANY will use commercially reasonable efforts to: (i) provide Customer with 99.9% availability to the Service (the “Service Availability”); and (ii) provide standard support to Customer.
If the Service becomes substantially unavailable to Customer due to defects with the Service, COMPANY will respond to Customer (i) within eight (8) hours from Customer’s notification to COMPANY of such unavailability, if during normal business hours (Monday-Friday, 8:00am – 6:00pm Pacific), or (ii) within eight (8) hours of the start of the next business day, if outside of normal business hours. The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime or performance issues resulting from third party connections, services or utilities or other reason beyond COMPANY’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving COMPANY employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within COMPANY’s possession or reasonable control, and denial of service attacks). If the Service is unavailable to Customer due to defects with the Service beyond the Service Availability metric, then, as Customer’s sole and exclusive remedy (and COMPANY’s sole liability), COMPANY will provide Customer a credit for the subsequent Service billing cycle as follows:
In order to receive downtime credit, Customer must notify COMPANY support within seventy-two (72) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. All credits provided hereunder are nonrefundable. If Customer elects not to renew the Agreement, such that the above credit cannot be applied, Customer will have the option to receive up to one free month of Service as its sole remedy in lieu of such credit.
COMPANY will provide support to customer for defects with the Service in accordance with the Service Plan selected by Customer. Any other support services are outside of the scope of this policy and must be separately agreed in writing by Customer and COMPANY. Customer may designate up to 3 support contacts (“Designated Support Contacts”), and all support requests must come through the Designated Support Contacts. Customer may update the Designated Support Contacts by providing notice to COMPANY.