SOFTWARE AS A SERVICE AGREEMENT
V2.2 June 2022
This Software as a Service (SAAS) Subscription Agreement, (“Agreement”) is made between Go Pinata Inc. (“Provider” or “PINATA”) and you (“Customer”). Under this Agreement Provider agrees to make available to Customer, for Customer's use for its business purposes only, access to and use of web based Provider Application for field marketing management, whereby such Provider Application is operated and maintained by Provider using computer systems owned or operated by or for Provider. Provider's services, including Customer's access to and use of the Provider Application, are referred to herein globally as the “Subscription Services.”
Definitions:
(a) Authorized Personnel: Shall include users with access to the Provider Application with rights and permissions granted by the Customer.
(b) Customer Content: Customer Content shall include all event(s) information, markets, Authorized Personnel, text, photos, video content, and all accounting information (subject to disclosure for authorized persons only), provided on the Provider Application and internally for Provider and/or Authorized Personnel, and other pages Provider sets up for Customer as part of this Agreement, whether provided in electronic or print format. Customer Content as it relates to such content from Authorized Personnel shall be limited to the content the Authorized Personnel submitted only in connection with Customer and Customer’s license, programs, activities or event(s).
(c) Aggregated Data: Customer Content or Provider Application data which is (i) anonymized and/or non-identifiable to any specific person or entity; (ii) combined with the data or Customer Content of other Customers, and/or their Authorized Personnel; and (iii) presented in a way which does not reveal the identity of Customer and/or their Authorized Personnel.
1. Grant of License and Services. Subject to the terms and conditions contained in this Agreement, Provider hereby grants Customer, during the term specified in Section 2, a non-exclusive, non-transferable, non-assignable, non-sublicensable license to access electronically in the manner authorized by Provider and to use, in the normal course of Customer’s business purposes, the Subscription Services produced by the Provider Application Software (herein “Provider Application”) electronically. Customer may not share, distribute or relicense the Subscription Services or Provider Applications with or for any other person or entity, except as provided herein.
Provider agrees to grant Customer access to and use of the Provider Application, through online password protected access website(s), subject to the terms of this Agreement and the parameters of Customer’s Subscription Order Form attached hereto as Exhibit A. The Subscription Services and Provider Application may be used by Customer as provided in this Agreement only, and may not be shared with other third parties without express written permission from Provider. Each Customer account shall provide an email address for communications with Provider.
The Subscription Services and Provider Application shall be subject to the selections made in the Subscription Order Form and the Agreement. Customer may print and retain output and reports produced using the Provider Application in connection with the normal use of the Subscription Services. Unless agreed to otherwise, such reports must contain the proprietary notice(s) designated by Provider from time to time.
Subject to the limited rights expressly granted hereunder, Provider and its affiliates, its licensors and content providers reserve all right, title and interest in and to the Subscription Services, Provider Application and Content, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
2. Term. The subscription and license and corresponding fees shall commence upon the date Customer first accepts this Agreement or as otherwise provided in the Subscription Order Form, and shall continue until all selected services have expired or terminated. The specific Term for each Subscription Service is determined by the Subscription Order Form attached hereto as Exhibit A. Unless specifically stated otherwise or if Customer provides written notice at least 90 days prior to the expiration of the current Term, each Term shall be automatically renewed for additional equivalent periods of time as the prior expiring term. If any renewal of Subscription Services results in Customer’s active choice to decrease or increase the level or volume of Subscription Services, this may result in a revised pricing and will be subject to a modified Subscription Order Form. In the event that Customer elects not to renew this Agreement, Customer shall continue to have full access to the Subscription Services until the expiration of Customer’s Term as defined in the then-current Subscription Order Form.
3. Authorized Personnel.
(a) Customer agrees to maintain a list of all Customer's personnel who are authorized to access the Provider Application (the “Authorized Personnel”). With the limited exception provided to a Customer, who is a staffing agency, Authorized Personnel shall not include any third-party staffing agencies, third-party promotional agencies, third-party marketing agencies, and/or third-party public relations agencies. The number of Authorized Personnel is limited to a monthly allotted amount as described in the Subscription Order Form. Additional Authorized Personnel which exceed the allotted number in the Subscription Order Form will be subject to additional fees and billing.
(b) Customer agrees to familiarize all Authorized Personnel with Customer's obligations under this Agreement as the obligations affect such Authorized Personnel. For purposes of this Agreement, any actions or omissions by Authorized Personnel shall be considered actions and omissions of Customer, and references to Customer include to that extent all Authorized Personnel (whether or not such persons are or continue to be Customer employees or independent contractors).
(c) Provider shall have the right to request removal and/or remove, for good cause, any individuals from Customer's list of Authorized Personnel and the immediate suspension of their access to the Provider Application. Customer agrees when so requested by Provider to remove such individuals promptly and suspend their use of the Provider Application, including notice in writing to the suspended Authorized Personnel, and access to the Provider Application. For this purpose, “good cause” means any good faith decision by Provider that removal or suspension of use is warranted for legal or regulatory reasons, including because of investigation of suspicious activities, or action by authorities, or if Provider has reason to suspect any Authorized Personnel are engaged in activities that may violate the terms of this Agreement, applicable laws, or industry policies and practices, or are otherwise deemed harmful to Provider, its network, or Provider's other customers. In any such case, Provider shall have the right, in its good faith discretion, to prohibit use of or access to the Provider Application by said individuals.
(d) Identification codes and/or passwords are required for access to the Provider Application for security purposes. Customer agrees to keep confidential any identification code and/or password required to access the Provider Application, and Customer agrees to restrict access to such identification codes and passwords to Authorized Personnel. Customer agrees to notify Provider immediately if Customer has reason to believe that unauthorized persons have obtained access to such identification codes or passwords.
(e) Customer agrees not to permit any persons other than Customer's Authorized Personnel to access the Provider Application or to enter, transmit or process transactions directly or indirectly into Provider's service network or using the Provider Application. Customer agrees to bear full financial responsibility for alltransactions entered, transmitted or processed by Customer personnel, whether or not they are listed as Authorized Personnel, as well as by any other person or entity gaining access to Provider's service network via Customer's business operations, connections, or premises.
(f) All Authorized Personnel must have a valid username and password (the “Log-In Information”) for the purpose of accessing the Provider Application and/or Subscription Service. Customer and its Authorized Personnel must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned Authorized Personnel. Customer and Authorized Personnel are entirely responsible for maintaining the confidentiality of that Authorized Personnel's Log-In Information. Customer and Authorized Personnel will be entirely responsible for any and all activities that occur under the Authorized Personnel's account. Provider will not be liable for any loss that a Customer or Authorized Personnel may incur as a result of someone else, whether authorized or not, using that Authorized Personnel's password or account, either with or without the Authorized Personnel's knowledge.
Rights and restrictions for Authorized Personnel relating to adding, modifying and/or managing additional Authorized Personnel accounts are subject to the Subscription Service up to and including the total number of Authorized Personnel Licenses purchased during the Subscription period as provided in the Subscription Order Form.
(g) Customer has full access and control of all Authorized Personnel, including the ability to add Authorized Personnel or modify access to the Provider Application for all Authorized Personnel within the approved number of licenses, and shall have full access to and ability to edit all Customer Content created or managed by Authorized Personnel. Customer has control permissions for Authorized Personnel to access and use of the Provider Application, including the ability to create, view and edit events, programs and individual activities and associated reports.
(h) Provider does not guarantee the security of any information transmitted to or from any Authorized Personnel over the Internet, including through the use of e-mail. Access to the Internet, if employed, is Customer's and each Authorized Personnel's sole responsibility and the responsibility of Internet provider(s) they select. In addition to those terms in Sections 8 and 10, Provider does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications, equipment, and other third-party related providers and services.
(i) Provider shall not be liable to any Authorized Personnel for suspension of access to the Provider Application and Subscription Services, regardless of the grounds. Customer shall indemnify Provider related to any claims by suspended Authorized Personnel as provided in Section 11.
4. Permitted and Prohibited Use. (a) Customer and each of its Authorized Personnel agrees, as a condition of use of the Provider Application and the Subscription Services, not to use the Provider Applications and Subscription Services for any purpose that is unlawful or prohibited by this Agreement, or in any manner that could damage, disable, overburden, or impair any Provider server, or the network(s) connected to any Provider server, or interfere with any other party's use and enjoyment of any Provider Applications and Subscription Services. Customer and each of its Authorized Personnel shall adhere to the Use Guidelines in Exhibit C attached hereto. Neither Customer, nor Authorized Personnel may attempt to gain unauthorized access to any part of the Subscription Services, other accounts, computer systems or networks connected to Provider or to any part of the Subscription Services, through hacking, password mining or any other means.
(b) Neither Customer, nor Authorized Personnel may obtain or attempt to obtain any materials or information through any means not intentionally made available through the Subscription Services. Except as expressly set forth herein, neither Customer, nor Authorized Personnel may (i) copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate the Provider Application and/or Subscription Services or any associated applications, tools or data thereof, except for those reports authorized through the Provider Application; (ii) disassemble, decompile, or reverse engineer the Provider Application used to provide the Subscription Services, or use a robot, spider, or any similar device to copy or catalog the content available through the Subscription Services or any portion thereof; or (iii) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the Provider Application and/or Subscription Services' control or security systems, or allow or assist a third party to do so.
5. Proprietary Rights. Customer acknowledges that (a) Provider owns and controls all right, title and interest in the Provider Application and Subscription Services, including all intellectual property rights relating thereto and Aggregated Data; (b) Provider does not grant to Customer any rights, including but not limited to access and use, or licenses, either express or implied, in the Provider Application, Subscription Services or Aggregated Data except as specified in this Agreement, and Provider specifically reserves all other rights; and (c) Customer's use of the Provider Application and Subscription Service shall be subject to the restrictions set forth in this Agreement. Provider shall be entitled to use and exploit, without restriction or charge, any ideas, improvements, suggestions, or enhancements to the Provider Application and Subscription Service made or provided by Customer, and Authorized Personnel.
The Subscription Services and Provider Application, including any and all associated intellectual property rights (including but not limited to trademarks, copyrights, patents and trade secrets) and including the Aggregated Data, are and shall remain the sole property of Provider, regardless of whether Customer, its employees, or Authorized Personnel may have contributed to the conception of such work, joined in the effort of its development, or paid Provider for the use of the work product. Customer shall from time to time take any further action and execute and deliver any further instrument, including documents of assignment or acknowledgment, that Provider may reasonably request in order to establish and perfect its exclusive ownership rights in such works, including any associated intellectual property rights.
Subject to licenses provided in this Agreement, Customer shall retain all right, title and interest in and to its Customer Content. Customer grants to Provider a nonexclusive, royalty-free, perpetual license in connection with the Customer Content, limited to (1) use and display for the purpose of this Agreement, (2) the functionality of the Subscription Services, including the ability to monitor and improve the Subscription Services internally and for Customers, (3) the ability for Provider to collect, extract, compile, synthesize, and analyze Customer Content; (4) to commercialize Aggregated Data, (5) in order to respond to service or technical problems, and/or (6) to provide customer support and system administrative services. If Provider accesses Customer Content in order to respond to service or technical problems, or to provide customer support and system administrative services, Provider shall not modify the content of Customer Content in a manner that adversely affects the integrity of Customer Content, or use Customer Content for any purpose other than that expressly provided in this Agreement.
6. Payment Terms. Customer shall place an order for each Subscription Service via any means made available by Provider. Fees for the Subscription Services and Provider Application (the “Fees”) are stated in United States Dollars, must be paid in United States Dollars. Customer is responsible for the currency conversion of non-U.S. monetary transactions. Customer shall pay all amounts owed to Provider in accordance with this Agreement and as corresponds to the Subscription Order Form. All agreed-upon Fees are due and payable regardless of whether any or all of the Subscription Services and Provider Platform are actually used by Customer. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.
7. Taxes. All Fees are exclusive of any Taxes and government surcharges. Provider will calculate all applicable Federal, State, Local or Province taxes in connection with the delivery and execution of the Subscription Services and Provider Application. Customer shall have full responsibility for payment of those Taxes and/or government surcharges, which shall be added to Customer’s invoices. “Taxes” means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed. For all use of the Subscription Services and Provider Application outside the U.S. and which is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the Fees due to Provider, then the sum payable to Provider will be increased by the amount necessary so that Provider receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
8. Responsibilities
8.a. Customer Responsibilities. Customer has sole responsibility for the following actions: (i) Supervising the use of the Subscription Services and Provider Application in Customer’s organization or under Customer’s direction, control or contractual obligation; (ii) Selecting and training Customer's Authorized Personnel so they can operate computers or devices to access the Provider Application and so they are familiar with the accounts and records that serve as input and output for the Provider Application; (iii) Reviewing and selecting the parameter settings and programming features and options with the Provider Application in order to comply with legislation applicable to Customer's business and its use of the Subscription Services; (iv) Supplying Customer and all Customer’s Authorized Personnel, or directing such Authorized Personnel to supply their own, computer hardware devices (e.g. laptops, desktops, mobile tablets and phones), internet access services, supported internet browsers, email services, computer security features (e.g. firewalls, spam filters) (v) complete responsibility and discretion with regard to the selection of any Customer event posted or available through the Subscription Services and Provider Application and (vi) Supervising Authorized Personnel to ensure that, in connection with their use of the Subscription Services, they abide by and comply with all applicable provisions of federal and state laws, rules and regulations.
8.b. Provider Responsibilities:
8(b)(i): Protection of Customer Content. Provider will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Provider Application, Subscription Services and Customer Content. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Content by Provider’s personnel and/or authorized third-party providers, except (a) to provide the Subscription Services and prevent or address service or technical problems, (b) as compelled by law, (c) as Customer expressly permit in writing or (d) as provided under the license in Section 5 herein.
8(b)(ii): Beta Services. From time to time, Provider may make Beta Services available to Customer at no charge. Beta Services shall only include such services whereby Customer receive an explicit invitation for a limited trial-run modification or new version of specific features, functions, or modules of the Provider Application. Customer may choose to try such Beta Services or not in Customer’s sole discretion. Beta Services are intended for evaluation purposes, may not be fully supported, and may be subject to additional terms. However, all restrictions, Provider’s reservation of rights and Customer’s obligations concerning the Subscription Services, and use of any related Non-Provider Applications and Content, shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Provider may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Provider will have no liability for any harm or damage arising out of or in connection with a Beta Service.
8(b)(iii): The Subscription Services includes the ability for Customer and its Authorized Personnel to be able to post or store Customer Content made available through the Subscription Services. Customer acknowledges that certain technical processing for posting, storing or managing Customer Content may be required to store and retrieve the Content, conform to connecting networks’ technical requirements, or conform to the limitations of the Subscription Services. Provider performs regular backups of Content for the purpose of recovery in the event of a failure in Provider’s data centers. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such Customer Content.
8(b)(iv): Provider shall provide to Customer a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the appropriate amount of web site space allocated to Customer’s Subscription Services. This allocation is for Customer’s non-exclusive use for the purpose of hosting the Customer specific Provider Application, including storing and processing Customer Content and disseminating said Customer Content via the Internet through the use of Provider, or its authorized third-party vendors’ equipment, as part of the Provider Application, for purposes consistent with this Agreement.
8(b)(v): During the Term of this Agreement, Provider shall make available, upon an express written request only, transactional data which may be downloaded, exported and/or sent via email. Such requests are subject to the Termination provisions in Section 18.
9. Warranty. PROVIDER EXPRESSLY WARRANTS THAT IT IS THE OWNER OR LICENSEE OF THE SUBSCRIPTION SERVICES AND PROVIDER APPLICATION, INCLUDING ANY AND ALL COPYRIGHTS, TRADEMARKS, PATENTS, AND TRADE SECRETS, AND HAS THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO LICENSE PROVIDER APPLICATIONS TO CUSTOMER IN ACCORDANCE WITH THE TERMS HEREIN AS OF THE EFFECTIVE DATE.
EXCEPT AS PROVIDED IN THIS SECTION, ALL SOFTWARE AND SERVICES PROVIDED HEREUNDER IS PROVIDED “AS IS.” THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
PROVIDER DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SUBSCRIPTION SERVICE WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. CUSTOMER AGREES AND ACKNOWLEDGES THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO CUSTOMER REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF CUSTOMER’S BUSINESS WHICH USES THE SUBSCRIPTION SERVICES AND/OR PROVIDER APPLICATION.
PROVIDER WARRANTS THAT IT WILL NOT MATERIALLY DECREASE THE OVERALL SECURITY OF THE SUBSCRIPTION SERVICES OR PROVIDER APPLICATION.
FOR ANY BREACH OF THESE WARRANTIES NOTED ABOVE, CUSTOMER’S EXCLUSIVE REMEDIES AS THOSE DESCRIBED IN SECTIONS 11, 12, AND 18 HEREIN.
10. Liability. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER, AUTHORIZED PERSONNEL OR ANY THIRD PARTY OR END USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES INCLUDING LOSS OF PROFITS, OR ANY AMOUNTS THAT IN THE AGGREGATE EXCEED THE FEES ACTUALLY PAID TO PROVIDER BY CUSTOMER (THE FOREGOING BEING COLLECTIVELY CALLED “DAMAGES”) INCURRED BY CUSTOMER, AUTHORIZED PERSONNEL OR ANY OTHER THIRD PARTY DURING THE PRIOR TWELVE MONTHS, FOR ALL CLAIMS WHATSOEVER RELATED TO ANY SUBSCRIPTION SERVICES, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY IS INTENDED TO APPLY TO ALL CLAIMS OF CUSTOMER, EXCEPT FOR CLAIMS OF INDEMNIFICATION MADE PURSUANT TO SECTION 11, WITHOUT REGARD TO WHICH OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
11. Indemnity.
Indemnification by Provider: Provider shall indemnify and hold harmless Customer, including its officers, directors, owners, affiliates, assigns, employees, agents and representatives, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, reasonable attorneys' fees, arbitration fees, mediation fees, expert expenses, amounts paid under a settlement agreement approved by Provider in writing, and all other consequences of every kind, directly or indirectly resulting from any claim that the Provider Application, excluding Customer Content, infringes or violates any United States patents, copyrights, or trade secrets rights of a third party. Customer may, at its own expense, assist in such defense if it so chooses, provided that Provider shall control such defense and all negotiations relating to the settlement of any such claim. Customer shall promptly provide Provider with written notice of any claim which Customer believes falls within the scope of this Section 11 and shall give Provider all reasonable assistance. In the event that the Provider Application or any portion thereof is held to constitute an infringement and its use is enjoined, Provider may, at its sole option and expense, (a) modify the infringing Provider Application so that it is non-infringing, (b) procure for Customer the right to continue to use the infringing Provider Application (or the alleged infringing portion), or (c) replace said Provider Application with suitable, non-infringing software. Notwithstanding the foregoing, Provider will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Provider Application made by or for Customer or any other party that were not provided by Provider or authorized by Provider in writing; (ii) use outside the scope of the license granted hereunder or in violation of this Agreement; (iii) use of a superseded or previous version of the Provider Application if infringement would have been avoided by the use of a newer version which Provider made available to Customer; (iv) use of the Provider Applications in combination with any other software, hardware, data, or materials not supplied by or authorized by Provider, which would not infringe without such combination; and/or (v) if the allegation of infringement fails to state with specificity that the Subscription Services or Provider Application are the basis of a claim against Customer. This indemnity obligation is subject to the limitation of liability and the other pertinent terms and conditions of this Agreement.
Indemnification by Customer: Customer shall indemnify and hold harmless Provider, including its officers, directors, owners, affiliates, assigns, employees, agents and representatives, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, reasonable attorneys' fees, arbitration fees, mediation fees, expert expenses, amounts paid under a settlement agreement approved by Customer in writing, and all other consequences of every kind, directly or indirectly resulting from (i) Customer’s warranties or breach of said warranties set forth in this Agreement; and (ii) Customer’s violation of a third party's intellectual property rights, including but not limited to Customer’s use of unauthorized or infringing Content within the Provider Application. Provider shall promptly provide Customer with written notice of any claim which Provider believes falls within the scope of this Section 11 and shall give Customer all reasonable assistance. Subject to these limitations above Provider will give sole control of the defense of such action to Customer. In the event that a settlement is sought regarding any claim(s) against Provider which Customer is defending through this Indemnification provision, such Settlement must unconditionally release Provider of all liability.
12. Customer Representations and Warranties. Customer represents and warrants that (a) it has full power and authority to enter into the Agreement and to agree to all the terms and conditions contained herein; (b) only Customer or its Authorized Personnel shall access the Subscription Services; (c) Customer and its Authorized Personnel will at all times use the Subscription Services only as expressly permitted by the Agreement; (d) Customer will comply with all applicable laws, rules and regulations in connection with its access and use of the Subscription Services; (e) Customer is responsible for obtaining any permission or consent, and for establishing and enforcing necessary controls and restrictions, relating to the collection, storage and use of confidential or personally identified information that Customer may be obligated to protect under privacy, data protection, or similar requirements or policies; (f) Customer has the requisite ownership, rights, and/or licenses with respect to Customer Content and (g) Customer Content, materials, and/or information contributed by Customer or Authorized Personnel will not contain any defamatory, unlawful or infringing materials or content, will not infringe upon any third party's proprietary rights and will not violate any law, regulation or right of any kind whatsoever or give rise to any actionable claim or liability. Customer agrees to accept responsibility and defend and protect Provider from any expense or liability arising from any violations of these warranties, including those other indemnifications provided in this Agreement. Customer represents and warrants that Customer is not subject to any contract or duty that would be breached by entering into or performing Customer’s obligations under this Agreement, or that is otherwise inconsistent with this Agreement.
13. Insurance. Provider agrees to secure and maintain the following minimum insurance policies, limits and provision at its own cost and expense, during the entire length of this Agreement. Such insurance will be provided by companies that maintain an AM Best rating of at least A-.
(i) General Liability Insurance – $6,000,000 per occurrence, $8,000.000 aggregate
(ii) Auto Liability - $1,000,000 per occurrence combined single limit;
(iii) Professional Indemnity - $1,000,000 per occurrence combined single limit;
(iv) Cyber Liability Insurance - $1,000,000 per occurrence, $2,000.000 aggregate
(v) Worker’s Compensation insurance – Statutory Limits with Employer’s Liability $1,000,000.
Provider will provide Customer with proof of insurance, via certificates of insurance, upon request. Upon request Provider’s liability insurance policies will name Customer, thereof as additional insured. All insurance policies and coverages applicable to this Agreement, including work or services provided hereunder, shall not contain any exclusions or limitations for claims, suits, or judgments based solely upon jurisdiction.
14. Confidentiality/Nondisclosure. During the term of this Agreement, including any or all renewal Terms, either party may, from time to time, receive or be given access to Confidential Information from the other party, either directly or indirectly, in any form and on any medium, of a confidential or proprietary nature that is designated as "confidential," including without limitation, the terms of this Agreement, any and all information related to the either party’s business (including screenshots, administrative access to application, workflow, service features, trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties) that either party considers to be confidential or proprietary or which such party has a duty to treat as confidential. During the term of this Agreement and at all times thereafter, each party will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining the other party’s express prior written consent on a case-by-case basis. Each party will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as the party protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) or is required by law or court order, provided that the receiving party immediately notify the disclosing party in writing of such required disclosure and cooperate with disclosing party, at disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
15. Support /Maintenance/Change Requests.
15(a). Provider, either directly or through its third party vendor(s), assignee(s) or licensee(s), shall provide technical support relating to the Subscription Services and Provider Application as detailed in attached Exhibit B.
15(b) THE FOLLOWING ARE NOT INCLUDED IN THE SCOPE OF CUSTOMER SUPPORT SERVICES: (i) Assistance in the development or debugging of a Customer and/or Authorized Personnel's computer systems including operating system or system tools; (ii) Information and assistance on technical issues related to the installation, administration, and use of enabling technologies such as databases, computer networks, and communications; (iii) Assistance with the installation and configuration of hardware and software including, but not limited to computers, hard disks, networks, printers; (iv) PROVIDER WILL NOT SUPPORT AN ALTERED, DAMAGED OR MODIFIED PROVIDER APPLICATION OR A PROVIDER APPLICATIONS PROBLEM CAUSED BY CUSTOMER AND/OR ITS AUTHORIZED PERSONNEL'S NEGLIGENCE, HARDWARE MALFUNCTION OR OTHER CAUSES BEYOND THE CONTROL OF PROVIDER, INCLUDING BUT NOT LIMITED TO INTERNET ACCESS, EMAIL SERVICES, AND/OR OTHER THIRD PARTY SOFTWARE.
15(c) Any change requests regarding the Provider Application after the Effective Date must be requested by Customer in writing and approved by Provider in advance. Provider in its sole discretion may refuse to provide requested changes. Upon Provider's receipt of the change order request, Provider will review the impact of the requested change on the Provider Application, including possible revisions to the Provider Application and/or completed programming, and reassess its additional charges for development of the Provider Application as such changes and charges are required. Provider reserves the right not to accept change requests because of possible cost, feasibility factors, resource limitations or potential interference with the performance of the Provider Application. Upon completion of its review, Provider shall submit proposed changes to the scope of the function of the Provider Application, including additional costs, to Customer for approval. Customer shall then be responsible for charges relating to the review of the proposed changes and for acceptance of said changes.
16. Web Hosting Provider agrees to provide web-hosting services for Provider Application for Customer to be able to access Subscription Services, Provider Application and Customer Content on the World Wide Web. Provider will use its own servers and/or third-party servers onsite, or offsite through third party hosting, for using, storing, and maintaining the Subscription Services, Provider Application and Customer Content. Provider shall be responsible for giving Customer access to the authorized levels of the Subscription Services, Provider Application and Customer Content and make them available on the World Wide Web through commercially reasonable efforts. Provider Application uptime and service response times are detailed in Exhibit B.
17. Publicity. During the term of this Agreement, Customer and Provider may engage in co-marketing and publicity programs, including advertisements in trade and other publications, upon written approval (not to be unreasonably withheld or delayed). Provider may also use Customer's name and logo as a reference, on Provider's website, and in marketing materials.
18. Termination of Agreement. Provider may cancel or suspend Customer’s use of the Subscription Service or a portion thereof at any time if Customer violates the terms of this Agreement, if Provider believes that Customer’s use of the Subscription Services represents a direct or indirect threat to its network function or integrity or anyone else’s use of the Subscription Services, or if Provider is otherwise required by law to do so. Upon notification by Provider of any such cancellation or suspension, Customer’s right to use the Subscription Services may stop immediately. Cancellation or suspension of the Subscription Services for Customer’s violation of the terms of this Agreement will not change Customer’s obligation to pay any Subscription fees due for the applicable Term.
Customer may terminate this Agreement and the licenses granted hereunder upon written notice for any material breach of this Agreement that Provider fails to cure within thirty (30) days following the written notice specifying such breach. Customer may terminate the Subscription Services at any time during its Term, but will not be entitled to a refund and any outstanding balance of the subscription agreement is immediately due and payable.
Upon termination or cancellation of the Subscription Services by either party for any reason, Provider may delete Customer’s Content permanently from its servers. Notwithstanding the foregoing, Provider will keep Customer’s Content for a period of 90 days, or as required by law, before it may be deleted from Provider’s servers. Notwithstanding Provider’s right to delete Customer’s Content upon termination, nothing herein shall prevent Provider from retaining such Customer Content in perpetuity, to be used, owned, and/or maintained as provided in Section 5.
19. Release. Customer and its Authorized Personnel release and waive all claims or potential claims prior to the Effective Date against Provider, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Customer's and/or its Authorized Personnel’s use of the Subscription Services and the Provider Application. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Provider.
20. General. This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof.
(a) Notices: All notices or other communications required to be given hereunder shall be electronically delivered to Provider by emailing sysadmin@gopinata.com or to Customer by emailing the listed contact person’s email in the associated Customer account. In addition to electronic notices, either party may also send notices in writing and delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided in this Agreement. Notices delivered electronically shall be effective upon return receipt or response; notices delivered personally shall be effective upon delivery; and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed.
(b) Amendments: No amendment or modification of any provision of this Agreement will be effective unless set forth in a writing that purports to amend this Agreement and that is executed by the party against whom such amendment is sought to be enforced.
(c) Relationship: Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Customer and Provider, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Provider and Customer. Provider shall have no control or ownership interests of any kind in Customer’s business. Provider's relationship to Customer shall be restricted to matters pertaining to the provision of the Subscription Services as set forth in this Agreement.
(d) Governing Law. This Agreement and the relationship between Customer and Provider shall be governed by the laws of the United States and specifically the State of New York, without regard to its conflict of law provisions. Customer agrees that any cause of action that may arise under this Agreement shall be commenced and be heard in the appropriate federal or state court in the State of New York, New York County. Customer agrees to submit to the personal and exclusive jurisdiction of the courts located within New York County in the State of New York. Customer further agrees to and waives any challenge to venue. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
(e) Force Majeure. If by reason of Force Majeure including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder and all acts of God, or any other act, event or circumstance beyond the reasonable control of a Party (whether or not mentioned or foreseeable), a Party is unable to perform in whole or in part its obligations as set forth in this Agreement, except for payment obligations, such Party shall not be liable to the other for its failure to perform said obligations.
(f) No Waiver. Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized officer of such Party. Such a waiver shall be limited specifically to the extent set forth in said writing. Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any subsequent event.
(g) Assignment. Neither party may assign this Agreement or any right or obligation hereunder, without the other party's prior written consent, except, either Party may assign this Agreement (together with all Subscription Order Forms) in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
(h) Non-Exclusive. Any and all Services which are or may be provided to Customer by Provider pursuant to this Agreement, including the licensure of rights herein, are non-exclusive and nothing in this Agreement shall limit or restrict Provider from providing similar services and granting similar licenses to other third parties.
(i) Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features.
(j) Export Compliance. The Subscription Services and Provider Application that are made available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer further understands and represents that Customer shall not permit Authorized Personnel to access or use any aspect of the Subscription Services or Provider Application in a U.S. embargoed country or in violation of any U.S. export law or regulation.
(k) Entire Agreement. This Agreement and any Schedules or Exhibits attached or executed hereunder, constitute the entire agreement between the parties, including Provider’s former entity Pinata, LLC, hereto and supersede all prior agreements written or oral that conflict with or relate to the terms or subject matter of this Agreement. This Agreement may only be amended by a written agreement signed by both parties. All signatures faxed, scanned, or emailed shall constitute originals for execution and binding purposes. This Agreement may be executed in counterparts which put together will create a binding Agreement.
21. ELECTRONIC ACCEPTANCE: BY ACCEPTING THIS AGREEMENT CUSTOMER AGREES TO BE BOUND BY ITS TERMS AND AGREE THAT THE TERMS CONSTITUTE AN AGREEMENT THAT IS ENFORCEABLE AGAINST CUSTOMER. PINATA’S RECORD OF CUSTOMER’S ACCEPTANCE WILL BE TREATED, FOR PURPOSES OF VALIDITY, ENFORCEABILITY AS WELL AS ADMISSIBILITY, THE SAME AS WRITTEN SIGNATURES.
The terms and provisions of the following Sections shall survive termination of this Agreement: 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, and 20.
Exhibit B
PINATA Support - Service Level Agreement
1. Introduction
PINATA’s support team (“PINATA Support”), either directly or through its third-party vendor(s), assignee(s) or licensee(s), shall provide support services relating to the Subscription Services and Provider Application (“Platform Support”).
2. Support Desk Hours
PINATA Support will be available over email (support@gopinata.com) from 9:00am ET to 7:00pm ET Monday - Friday (excluding national and federal holidays) (“Support Desk Hours”).
3. Response and Resolution Times
Customer emails to support@gopinata.com (“Support Inquiries”) will receive a response within 6 hours if the Support Inquiry is submitted within Support Desk Hours or, if submitted outside of Support Desk Hours, within 6 hours of when PINATA reopens pursuant to the Support Desk Hours. Resolution times will vary based on the type and severity of the Support Inquiry. Customer shall provide all technical, functional, and other information necessary to assist PINATA Support with diagnosis, testing, scoping, triaging, and/or reproducing the Customer’s Support Inquiry, all of which require accurate and detailed information provided by the Customer upon request from PINATA Support. PINATA Support will provide Customer with an expected, non-guaranteed resolution time and will provide regular updates on a reasonable cadence to inform the Customer of any updates to the resolution of the Support Inquiry.
4. Platform Training
PINATA will provide 1 live training session via video conference to Authorized Personnel as part of Customer’s Subscription Services as well as provide Customer with an online library of platform support and training documentation accessible on an ongoing basis via the World Wide Web twenty-four (24) hours a day, seven (7) days a week. Additional live training sessions (whether via video conference or live) may incur additional fees.
5. Limits on Support Services
PINATA Support services are limited to Platform Support only and do not cover areas including but not limited to: (a) Customer hardware; (b) Customer third-party systems, applications, tools, software, and utilities, or any other third-party services; (c) Customer network, email, or other IT configurations, settings, operations, and services core to Customer business functions; (d) off-platform activity related to the Subscription Services and Provider Application, including but not limited to: (i) event planning including but not limited to event design, budgeting, scoping, and staffing; (ii) event logistics including but not limited to travel, purchasing of supplies, direct scheduling with event venue, and event setup; (iii) product availability and/or quality; and (iv) expense payment and reimbursement.
6. Platform Uptime
Access to the Subscription Services and Provider Application via the World Wide Web shall be made for twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance, required repairs, 3rd-party service interruptions, and other inadvertent downtime (including but not limited to 3rd-party service outages).
Exhibit C
Use Guidelines and Restrictions
Customer and Authorized Personnel may not use any Subscription Services and Provider Application in order to transmit, post, distribute, store or destroy material, including without limitation, PINATA Content or Customer Content, (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of PINATA or others or violate the privacy, publicity or other personal rights of PINATA or others, or (c) that is defamatory, disparaging, obscene, threatening, abusive or offensive.
Customer and Authorized Personnel will not: (a) impersonate any person or entity, whether actual or fictitious, or misrepresent Customer’s affiliation with any other person or entity; (b) attempt to gain unauthorized access to other computer systems through the Subscription Services and Provider Application; (c) engage in spidering, screen scraping, database scraping, harvesting of catalogue information, e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of catalogue items or information, users or other information from or through the Subscription Services and Provider Application, including without limitation any information residing on any server or database connected to the Subscription Services and Provider Application; (d) obtain or attempt to obtain unauthorized access to PINATA’s computer systems, materials or information through any means; (e) use the Subscription Services and Provider Application in any manner with the intent to interrupt, damage, disable, overburden, or impair the Subscription Services and Provider Application, including, without limitation, sending mass unsolicited messages or "flooding" servers with requests; (f) use the Subscription Services and Provider Application in violation of PINATA’s or any third party's intellectual property or other proprietary or legal rights; (g) use any known or future unknown technology to harvest, names, addresses, contact information for spam, reverse engineering, data collection, data mining, unsolicited telemarketing or other unwanted nuisance intrusions; (h) use any device, software or scheme that would interfere with the proper functioning of the Subscription Services and Provider Application, or any transaction via the Subscription Services and Provider Application; (i) place an undue burden or interfere with the lawful transmission of the Subscription Services and Provider Application to other customers, (j) use any device to limit PINATA’s total free access to the web infrastructure, and related App infrastructure; and (k) use the Subscription Services and Provider Application in violation of any applicable law.
Customer and Authorized Personnel further agree that they will not attempt (or encourage or support anyone else's attempt) to engage in any of the foregoing prohibited activities or to circumvent, reverse engineer, decrypt, disassemble, decompile or otherwise alter or interfere with the Subscription Services and Provider Application, or any content thereof, or make unauthorized use thereof. You also agree that You will not obtain, use or access, or attempt to obtain, use or access, any materials or information through any means not intentionally made publicly available or provided for through the Subscription Services and Provider Application.
The following Customer Content is prohibited on the Subscription Services and Provider Application. Content that: (1) is implicitly or explicitly offensive, including any content that engages in, endorses or promotes racism, bigotry, discrimination, hatred or physical harm of any kind against any group or individual; (2) harasses, incites harassment or advocates harassment of any group or individual; (3) involves the transmission of "junk mail", "chain letters," or unsolicited mass mailing or "spamming"; (4) promotes or endorses false or misleading information or illegal activities or conduct that is abusive, threatening, obscene, defamatory, disparaging or libelous; (5) promotes or endorses an illegal or unauthorized copy of another person's copyrighted work, such as providing or making available pirated computer programs or links to them, providing or making available information to circumvent manufacture-installed copy-protect devices, or providing or making available pirated music or other media or links to pirated music or other media files; (6) contains restricted or password only access pages, or hidden pages or images; (7) displays or links to pornographic, indecent or sexually explicit material of any kind; (8) provides or links to material that exploits people under the age of 18 in a sexual, violent or other manner, or solicits personal information from anyone under 18; (9) provides instructional information about illegal activities or other activities prohibited by this Agreement, including without limitation, making or buying illegal weapons, violating someone's privacy, providing or creating computer viruses or pirating any media; (10) solicits passwords or personal identifying information from other Customers and (11) violates any applicable federal, state or local law including but not limited to laws prohibiting discrimination.
Although PINATA reserves the right to do so, PINATA does not necessarily monitor any materials or Customer Content posted, transmitted, or communicated to or within the Subscription Services and Provider Application. If notified by a Customer or Authorized Personnel of Customer Content or other materials which allegedly do not conform to this Agreement and these Guidelines, PINATA may in its sole discretion investigate the allegation and determine whether to remove or request the removal of the Customer Content or to take any other appropriate action.
