1. SOFTWARE TERMS OF SERVICE.
The following terms shall have the following meanings, and such meanings shall apply to both singular and plural forms of any such terms:
“Pobal Materials” means the Software, APIs, Documentation and Pobal Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Pobal or any subcontractor or Third Party Provider of Pobal in connection with the Services or otherwise comprise or relate to the Services or Pobal Systems, including, for the purposes of the Terms, as between the parties, Pobal Third Party Tools and Data. For the avoidance of doubt, Pobal Materials include Usage Data.
“Pobal Site” means https://ourpobal.com/ including all subdomains and as the same may be updated from time to time.
“Pobal Systems” means the information technology infrastructure used by or on behalf of Pobal in performing the Services, including all computers, software, Pobal Site, any Pobal application designed for mobile or other specific devices, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Pobal or through the use of third party services.
“Pobal Third Party Tools and Data” means the third party tools, software, services, Third Party Provider Content, content, materials, information, documents, specifications, products, equipment or components of or relating to the Services that are procured by Pobal from Third Party Providers and with which any or all of the Services, including the Software, interoperate.
“Customer Data” means information, data and other content, but excluding Usage Data, in any form or medium, which (i) is uploaded or transmitted directly or indirectly by Customer or an Authorized User to Pobal by or through the Software Services; (ii) is directly output from the Processing of such information, data or content by or through the Software Services; or (iii) is created by Customer and maintained by Customer within the Software Services. For clarity, Customer Data includes Customer Personal Information.
“Customer Systems” means Customer’s, or any Authorized User’s, information technology infrastructure, including without limitation or other computers, software, hardware, databases, electronic systems (including database management systems), networks, telephones, telecommunications connections, whether operated directly by Customer or any Authorized User, Third Party Provider or Distributor.
“Customer Third Party Services and Data” means any third party services, hardware, data, information, or content that are procured by Customer from Third Party Providers to interoperate with the Services.
“Access Methods” means the user identifiers and passwords used to verify an Authorized User’s credentials to use the Software Services and Support pursuant to the Terms.
“Affiliate” means an entity either directly or indirectly Controlled by, Controlling or under common Control (as defined below) of a party.
“Order” means any written order agreed to between Customer and Pobal or Customer’s order of Software and/or Services through the Pobal Site or otherwise. All such Orders will be bound by the Terms.
“API” means any application interface that Pobal makes available hereunder.
“Applicable Privacy Laws” means all laws, regulations, rules and guidance pertaining to privacy, data processing and data protection applicable to Pobal’s Processing of Personal Information in connection with Pobal’s provision of and making available of the Services;
“Authority” means any government authority, agency, body or department, whether federal, state, or municipal, having or claiming jurisdiction over the Terms and “Authorities” means all such authorities, agencies, bodies and departments.
“Authorized User” means those employees, agents, independent contractors, and customer(s) who are authorized by Pobal (or by Customer’s Services Administrator, as defined in and specified in an Order) to use Services, and who have been supplied Access Methods, as may be further specified in an Order.
“Claims” means all claims, demands, losses, liabilities and damages (including taxes and related penalties if applicable), and all related costs and expenses, including reasonable legal and professional fees, expert fees and disbursements, and costs of investigation, litigation, settlement, judgment and appeal, if any.
“Control” (and its variants set forth in Section 1.2) means having a more than fifty percent (50%) equity voting interest or the sole power to direct or cause the direction of the management or policies of the entity, whether through the ability to exercise voting power, by contract or otherwise.
“Confidential Information” means any oral, written, graphic or machine readable information including, but not limited to, that which relates to research, trade secrets, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software, hardware configuration, algorithms, business plans, agreements with third parties, services, customers, marketing or finances of the disclosing party, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
“Distributor” means a third party distributor or vendor over whose network or through whose services Customer may use the Services.
“Documentation” means any written specifications, manuals or instructions for the Software Services that Pobal specifically provides or makes available for Customer through Customer’s account, as well as any then-current general minimum Customer System requirements as published by Pobal (as may be updated from time-to-time).
“Feedback” means all suggestions, input, information, comments, or other feedback provided by Customer to Pobal with respect to the Services, but excludes Customer Data.
“Force Majeure Event” means any occurrence beyond the reasonable control of a party hereto or its sources, such as, acts of God, disasters, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, act of government, Internet or telecommunication service provider failures or delays, communication line or power failures, or hosting or cloud service provider technical failures or delays, denial of service attack, inoperability or destruction of any computer equipment or software.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby.
“Intellectual Property Rights” means all intellectual property and other proprietary rights, including, without limitation, all rights provided under trade secret law, patent law, copyright law, trade mark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor.
“Modifications” means any corrections, improvements, translations, alterations, adaptations, revisions, withdrawals, additions, developments, as well as new versions or regular enhancements, changes, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing. For clarity, Modification does not include additional or wholly new modules, products or services.
“Personal Information” means (a) information about an identified or identifiable individual; (b) any information that when combined with such individually identifiable information identifies an individual; or (c) information that is otherwise protected under Applicable Privacy Laws.
“Process” means to create, obtain, acquire, record, access, organize, alter, use, store, maintain, copy, aggregate, disclose, erase, destroy, dispose of or otherwise process. “Processing” and “Processed” have correlative meanings.
“Professional Services” means the customization, integration, training, consulting, development and other professional services purchased pursuant to an Order, and any Modifications to such services, but does not include Software Services or Support.
“Services” means the Software Services, including accompanying Support, and Professional Services.
“Software” means the Pobal software application(s) and other software, and all Modifications of the foregoing, that Pobal makes available for use as part of the Software Services whether through the Pobal Site or otherwise.
“Software Services” means the software services made available by Pobal for use by Customer, including the making available of the Software and accompanying Support, and any Modifications to such services and/or software, as may be subscribed to or purchased by Customer pursuant to and as specified in an Order, but not including Professional Services or Pobal Third Party Tools and Data.
“Support” means the standard support services accompanying the Software Services and any Modifications to such support services, but not including Professional Services or Pobal Third Party Tools and Data. For clarity, Support does not include Professional Services, hardware and related supplies and support thereof, or any onsite (e.g. onsite at a Customer location) support.
“Third Party Provider” means a supplier of data, information, content, software, services or other items or infrastructure that are part of or otherwise used in connection with the Services to include Amazon Web Services, Twilio, CA Cloud and eLearning Experts.
“Use” or “use” (a) of the Software Services, including accompanying Support, means to9 “access and use” the Software Services and to “access, use and, to the extent applicable, receive” Support; and (b) of Professional Services, means to “receive” Professional Services.
“Usage Data” means information, data and other content collected from, as well as insights, ideas, observations and know-how generated from, Pobal’s monitoring of usage and interaction with the Services by Authorized Users that is sufficiently different from Customer Data (including Personal Information) that Customer Data cannot be reverse engineered other otherwise identified from the inspection analysis or further Processing of such data.
“Work Product” means (in any form including source code) any and all processes, methods, formulas, algorithms, reports, programs, manuals, software, flowcharts and systems and any improvements, enhancements, or modifications to any of the foregoing, which are developed, prepared, conceived, or made by Pobal as part of, in connection with, or in relationship to the performance of Services pursuant to an Order. Work Products also means all such developments as are originated or conceived during the term of any Order but are completed or reduced to practice thereafter. Other terms are defined elsewhere in the text of the Terms.
- TERM & TERMINATION; FEES.
The term of each Order begins once Probal accepts any such Order and shall continue in effect in accordance with the provisions stated therein. In the event no term is indicated in an Order for Software Services, (a) the term of such Order will be 3 years; and (b) such term will automatically renew for successive 12 month periods unless either party notifies the other in writing of its decision not to extend the term of such Order at least 60 days prior to the expiration of the then current term.
3.1.2 Termination for Breach; Insolvency.
Either party may terminate any or all Orders in the event of a material breach thereof which is not cured within 30 days of written notice of such material breach; provided, however, such termination shall not take effect if the breaching party cures or corrects the breach within such 30 day notice period. In addition, either party may terminate any or all Orders upon written notice to the other if the other party is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party (and such petition is not dismissed within 30 calendar days) or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.
3.1.3 Suspension of Services. In the event that Pobal learns of any of the following described circumstances, then Pobal may immediately suspend or disable Customer’s or any Authorized User’s use of any or all of the Services and Pobal Materials, without liability to Pobal: (a) any breach of Section(s) 3.5.1(a), 3.5.2(a), or 6.2.1; (b) any circumstance that Pobal reasonably and in good faith believes requires temporary suspension of the Services in order to protect the Services, Pobal, Pobal Materials, any Pobal Third Party Provider, or any of Pobal’s client’s or their data, for clarity including for example but not exclusively cases of cyber-attack, Customer data breach or physical security risk to equipment; or (c) if Customer does not cure any late payment hereunder within 10 days of the date of Pobal’s notice regarding such late payment, Pobal will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless Pobal determines, in its reasonable judgment, that a suspension on shorter or contemporaneous notice is necessary to protect the Services, Pobal, Pobal Materials, any Pobal Third Party Provider, or any of Pobal’s Customers or their data from imminent risk. In the event that Pobal suspends use of the Service pursuant to this Section 3.4.3, Pobal will promptly inform Customer in writing, and will use reasonable efforts to limit the suspension to the affected portion(s) of the Services, and will work with Customer to resolve the issue(s) causing such suspension.
3.1.4 Effect of Termination.
In addition to any other termination obligations hereunder, the below provisions shall apply upon the earlier of termination of any Order. (1) Customer shall immediately cease using any terminated or expired Services, Pobal Third Party Tools and Data and Pobal Materials. Customer shall within 30 days: (a) pay all agreed upon sums owing to Pobal under the affected Order(s) to the date of termination; (b) return to Pobal, or at Pobal’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any Pobal Materials or other Pobal Confidential Information; (c) permanently erase all Pobal Materials and other Pobal Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on Pobal Confidential Information or Pobal Materials, from all Customer Systems; and (d) upon Pobal’s request, certify to Pobal in a signed written instrument that it has complied with the requirements of this Section. (2) Notwithstanding anything to the contrary in the Terms, with respect to information and materials then in its possession or control: (a) Pobal may retain Customer’s Confidential Information and Pobal may retain Customer Data, in each case, in its then current state and solely to the extent and only for so long as required by applicable law, rule or regulation; and (b) Pobal may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course.
Upon termination of all Orders, at Customer’s request, and for a period not to exceed ninety (90) days from the date of the last such termination, Pobal shall cooperate with Customer in the transition of moving Customer Data back to Customer or Customer’s designee. If an Order is terminated by Pobal pursuant to Section 3.4.3, then such services shall be provided by Pobal at its then-current standard professional services rates plus expenses and Taxes, and Pobal may at its discretion require advance payment or other adequate security for payment as Pobal may consider appropriate in connection with or as a condition to the provision of services described in this section.
3.2 General Services Restrictions and Obligations; Representations and Warranties.
3.2.1 General Customer Obligations.
Customer shall: (a) obtain and maintain all necessary licenses, consents, and permissions necessary for Pobal, its contractors and agents to perform their obligations under the Terms; and (b) comply with all applicable laws, rules, and regulations applicable to its use of the Services, Pobal Materials and Customer Third Party Services and Data, including privacy laws, securities laws, and export laws.
3.2.2 Responsibility; Acceptable Use Policy.
Customer shall be responsible for its, and any Authorized User’s (a) compliance with, and breach of the Terms and any conclusions, decisions or actions based on their use of the Services, Pobal Materials or Customer Third Party Services and Data. None of Customer or any Authorized User may use the Services or any Pobal Materials other than in the manner specifically identified in the Terms.
3.2.3 Access Methods.
Authorized Users may only use the Services via the Access Method(s) stated in the applicable Order(s). Customer is responsible for protecting the security and integrity of all Access Methods. Customer shall hold in strict confidence all administrative Access Methods. Customer is responsible for any acts or omissions occurring under any administrative Access Methods, other than those administrative Access Methods which are under the control or care of Pobal.
3.2.4 Corrective Action and Notice.
If Customer becomes aware of any actual or threatened activity prohibited by this Section 3, then Customer shall, immediately: (a) take all reasonable and lawful measures within its control necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Pobal of any such actual or threatened activity.
3.2.5 Customer Systems. As between the parties, Customer has and will retain sole control over the operation, maintenance and management of, and all use of, any Customer Systems, and sole responsibility for all use and receipt of the Services and Pobal Materials by any person by or through Customer Systems or any other means controlled or directed by Customer or Authorized User, including any information, instructions or materials provided by same to the Services or Pobal.
Customer shall: (a) provide reasonable cooperation and assistance as Pobal may reasonably request to enable Pobal to exercise its rights and perform its obligations under and in connection with the Terms; (b) promptly communicate to Pobal all changes to Customer’s resources, equipment, facilities and software, that impact or may impact the Services; and (c) carry out all other Customer responsibilities set out in the Terms in a timely and efficient manner. Pobal is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Terms.
3.2.7 Relationship Management.
The parties will each appoint a person to act as its representative for managing the overall relationship between the parties. The parties’ representatives will meet quarterly to review the status of the Services, and the parties’ compliance with the Terms, and other relationship governance matters as mutually agreed from time to time.
3.2.8 Modifications; Upgrades; New Services.
Pobal reserves the right to Modify any of the Software Services or Pobal Materials and any portions or configurations thereof, from time to time; provided that no such Modification may materially diminish any functionality or feature of the Software Service material to Customer’s use of the Software. Pobal may, in its sole discretion, make available, for additional fees, additional or wholly new modules, services and products that have materially different functionality from the Software Services as described in an Order.
3.2.9 Pobal Third Party Tools and Data.
Except with respect to Pobal’s Hosting Providers, Pobal shall be responsible for all Pobal Third Party Tools and Data provided as part of the Software Services and shall provide Support for the same.
3.2.10 Customer Third Party Services and Data.
Customer may from time to time procure Customer Third Party Services and Data. Any acquisition by Customer of any such Customer Third Party Services and Data, and any exchange of data between Customer and any Third Party Provider, is solely between Customer and the applicable Third Party Provider. Pobal does not warrant or support Customer Third Party Services and Data, except that (i) Pobal will support integration of the interoperability of the Software Services with Customer Third Party Services and Data; and (ii) Pobal may agree to other support if specifically agreed to by the parties in a particular Order.
3.2.11 Promotional Material.
If Pobal or Customer wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval. The parties agree that any of them can withhold approval until the promotional material is agreeable to such party.
3.2.12 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and comply with the Terms; (c) the acknowledgement of and agreement to the Terms by its representative has been duly authorized by all necessary corporate or organizational action of such party; (d) the Terms constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance thereof; and (e) the fulfilment of its obligations under the Terms will not breach its contractual or other obligations to third parties, and will not breach any applicable laws.
3.2.13 Pobal Representations and Warranties.
Pobal represents and warrants that the Professional Services will be performed in a competent, professional and workmanlike manner. To the extent any acceptance criteria are required in connection with any Work Product provided as part of any Professional Services provided pursuant to a particular Order, then such criteria shall be set out in such Order. In the event such Work Product do not meet such acceptance criteria, Pobal will reasonably proceed to correct the deficiency until such Work Product are accepted (not to be unreasonably withheld) by Customer. For a period of 90 days from such Acceptance (“Work Product Warranty Period”), Pobal warrants that such Work Product will materially conform to such applicable acceptance criteria, if any. During the Work Product Warranty Period, Pobal’s sole responsibility and Customer’s sole remedy with respect to non-conforming Work Product is for Pobal to, at its option, either use commercially reasonable efforts to correct the deficiency or terminate the affected Professional Services and refund to Customer any amounts paid for such Work Product, but termination may only be selected if the deficiency cannot be corrected by Pobal, using commercially reasonable efforts, within 30 days of Customer’s written notice of the deficiency. The warranty set forth in in this Section 6.3.2 does not apply upon any of the following: (a) any change, addition, deletion or other modification was made to the Work Product, except as specifically authorized in writing by Pobal; and (b) failure by Customer to report a deficiency within the specified Work Product Warranty Period.
3.3 Fees and Charges.
3.3.1 Fees and Charges; Payment Terms.
Customer shall pay fees and charges stated in the applicable Order(s), in United States Dollars, plus all applicable Taxes, within 15 days after the date of Pobal’s invoice. These fees and charges shall be due and payable by Customer to Pobal regardless of whether Customer uses any Services. In case of Termination for Breach or Insolvency as per Section 3.4.3, only the unused portion of pre-paid fees is refundable. 3.3.2 Fee Increases. Pobal may increase the fees and charges for any Software Services by providing advance written notice to Customer, but Pobal shall not increase its fees and charges for the Software Service subscribed to thereunder more than once during any 12 month period.
3.3.3 Late Payment. Pobal may assess a late charge at a rate of (i) 1% per month; or (ii) the maximum amount allowed under the law, whichever shall be greater, on all amounts due and not paid within 30 days of the date of Pobal’s invoice until the time of Pobal’s receipt of payment.
3.3.4 Taxes. Pobal’s rates, fees and other charges set forth in the Terms do not include any and all present or future taxes, levies, customs, duties, deductions, charges or withholdings, and all liabilities (including penalties, additions to tax, interest and expenses) with respect thereto, including but not limited to value added tax, sales tax, consumption tax and similar taxes or duties, as well as any similar city, municipal, provincial or state taxes whether currently imposed or to be imposed in the future, but excluding always taxes or duties determined on Pobal’s gross or net income, personnel or property (collectively, hereinafter referred to as “Taxes”), for which Customer will be responsible. For any Taxes that Pobal is required to withhold or remit to the applicable taxing authority, Pobal shall include each such Tax as a separate line item on its applicable invoice, shall timely remit such Taxes to the applicable taxing authority and shall indemnify Customer from any failure thereof by Pobal. If any Taxes are found to be applicable or if Customer or any person paying to Pobal on behalf of Customer (including banks) shall be required by Law to deduct any Taxes from or in respect of any sum payable to Pobal hereunder, then: (a) the sum payable to Pobal shall (at the same time and on the same conditions as applied to the sum payable) be increased as may be necessary such that following all required deductions, Pobal receives the amount equal to the sum it would have received had no such deductions been made; and (b) Customer shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with the applicable Law. Upon the request of Pobal, Customer shall promptly take all reasonable and proper actions, including, without limitation, the completion of forms, certificates and documents and the provision of information to the relevant taxing authority, of the kind required under the applicable Law.
- NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
Pobal and Customer each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to carry out the purposes of the Terms. Neither party will disclose or permit disclosure of any Confidential Information of the other party to third parties or to employees of the party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information in order to carry out the purposes of the Terms. Each party has had, or will have, entered into arrangements with its employees, consultants and agents who have access to Confidential Information of the other party with substantially similar restrictions on disclosure to this provision. Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this provision to have any such information. Such measures will include, but not be limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which will be no less than reasonable care. Each party agrees to notify the other in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing party which may come to the receiving party’s attention. Notwithstanding the above, neither party will have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; or (iii) is disclosed with the prior written approval of the disclosing party. Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party will provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Confidential Information so disclosed will continue to be treated as Confidential Information as between the parties hereto. Notwithstanding the foregoing, either party may provide information about the terms and status hereof on a confidential basis to its subcontractors, lenders, private investors, legal counsel, accountants, auditors and other professional advisors, and either party may file a copy of the Terms with the Securities and Exchange Commission or other applicable regulatory body on advice of counsel; provided, however, that the filing party will use reasonable efforts to seek confidential treatment of the economic terms of an Order and will notify the other (non-filing) party in writing in advance of such filing. Each party acknowledges that the restrictions and obligations in this Section 6.6 are reasonable and necessary to protect the other party’s interests and in the event of a violation of these restrictions or obligations, remedies at law may be inadequate and a violation may cause irreparable damages. Accordingly, notwithstanding anything to the contrary herein, each party shall be entitled to immediately seek injunctive relief, without posting bond or other security, against the other party or the other party’s employees or agents for any violation thereof.
- SECURITY; PERSONAL INFORMATION; DISASTER RECOVERY.
Pobal shall be responsible for implementing and complying with commercially reasonable measures (including technical and organizational security measures) designed to maintain the security and non-disclosure of all Customer Data in the course of providing the Software Services and Support to you. Pobal shall comply with all Laws (including Applicable Privacy Laws) applicable to its Processing of Customer Data and otherwise performing the Services. Pobal shall use reasonable endeavors to set up, maintain and operate in good repair all systems used to perform the Services. In addition, Pobal shall ensure, using commercially reasonable endeavors, that all systems used to provide the Services are configured in accordance with the “principle of least privilege.”
5.2 Personal Information.
Pobal acknowledges that Customer Data may include Personal Information of Authorized Users (“Customer Personal Information”). With respect to such Customer Personal Information, Pobal shall: (a) use Customer Personal Information only for the purposes necessary to provide the Software and/or Services; and (b) maintain Customer Personal Information only for so long as may be required to fulfill the purposes for which Customer Personal Information was collected, or as may be permitted herein.
5.3 Government Demand.
Notwithstanding anything to the contrary in the Terms, Pobal may disclose Customer Data as required by applicable law, rule or regulation, including Applicable Privacy Law, or by proper legal or Authority. Pobal shall, to the extent legally permitted, give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
Customer agrees that Pobal may transfer Customer Data to, and Process Customer Data via, providers of hosting and backup services for the purposes of Pobal providing and making available the Services (each, a “Hosting Provider”). Pobal shall provide to Customer a list of such Hosting Provider(s) involved in the Services who have been transferred Customer Data for backup storage, hosting storage and Processing services, and a copy of any information Pobal receives describing the information security of such Hosting Providers. Customer shall be provided notice of any changes by Pobal from one Hosting Provider to another.
- ADDITIONAL TERMS.
6.1 Customer Data; Feedback.
As between the parties, Customer owns all right, title and interest in and to Customer Data. Customer hereby grants to Pobal and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid-up license to use and Process (including, without limitation, to host, store, copy, record, transmit, maintain, and display), including via Customer’s Third Party Providers, Customer Data and any Customer Third Party Services and Data for the purposes of making available and providing the Services hereunder. Customer is solely responsible for the following with respect to any Customer Data and Customer Third Party Services and Data: (a) compliance with the Acceptable Use Policy; (b) all storage, backup and retrieval thereof not used by Pobal to provide or make available the Services; (c) any transmission errors, corruption, or compromise thereof transmitted via Distributors or other Third Party Providers, or otherwise transmitted via the Internet; and (d) the condition, completeness, timeliness, backup, legality, reliability, integrity, accuracy and quality thereof. Customer agrees that Pobal does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Customer Data or Customer Third Party Services and Data. For certainty, Pobal is not responsible for and has no liability for Customer not storing and backing-up all Customer Data. Customer may from time to time provide Feedback. Customer agrees that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Customer shall not, absent a separate written agreement, create any confidentiality obligation for Pobal. Pobal shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
6.2 Pobal’s Proprietary Rights; Equitable Relief; Third Party Beneficiaries.
All right title and interest in and to the Services and Pobal Materials, and any Work Product, including, without limitation, all Intellectual Property Rights and other proprietary rights therein, are and shall remain the sole and exclusive property of Pobal, its Affiliates and their Third Party Providers, as the case may be. Neither the Terms nor any Order grants any Intellectual Property Right or license under any Intellectual Property Right in or to the Services or Pobal Materials. All rights in and to the Services and Pobal Materials are expressly reserved by Pobal and the respective Third Party Providers. Customer shall not violate the Intellectual Property Rights and other proprietary rights of Pobal, its Affiliates, and their Third Party Providers in the Services and Pobal Materials, including, but not limited to, any contractual, statutory, or common-law rights, during and after the Term. Upon any termination under the Terms or suspension of Services, Customer shall immediately cease all use of Software, Software Services and Pobal Materials. Customer shall comply with all reasonable requests made by Pobal to protect the rights of Pobal at their expense, its affiliates, and their Third Party Providers in the Services and Pobal Materials. As between the parties, all Customer Data and Customer Systems, and all Intellectual Property Rights therein, shall remain the sole and exclusive property of Customer, and, except in the course of fulfilling its obligations hereunder, Pobal shall not use, disclose, or otherwise share such with any third-party including but not limited to any other financial service provider. The parties agree that any breach or threatened breach of Section 4 or this Section 6.2 shall cause a party, its Affiliates and/or their Third Party Providers irreparable injury that cannot be adequately compensated for by means of monetary damages. Any breach thereof may be enforced by the affected party, its Affiliates, or their Third Party Providers by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available, without the need to post a bond or other security.
EXCEPT AS EXPRESSLY SPECIFIED IN THE TERMS, WITH RESPECT TO THE SERVICES, POBAL MATERIALS, THIRD PARTY TOOLS AND DATA, CUSTOMER THIRD PARTY SERVICES AND DATA, WORK PRODUCT, AND ANY DATA OR RESULTS OBTAINED OR OUTPUT BY USING ANY OF THEM: (A) CUSTOMER’S OR AUTHORIZED USER’S, USE THEREOF ARE ALL AT THEIR SOLE RISK; (B) ARE PROVIDED “AS IS” AND “AS AVAILABLE”; AND (C) THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) (I) REGARDING ANY OF THEM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, CURRENCY, COMPLETENESS, ACCURACY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, OR UNINTERRUPTED USE; OR (II) THAT ANY OF THEM WILL MEET ANY REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE (INCLUDING FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, SUCH AS DENIAL OF SERVICE ATTACKS), ERROR FREE, OR FREE OF HARMFUL CODE.
IN NO EVENT WILL THE MAXIMUM CUMULATIVE LIABILITY OF POBAL OR ITS AFFILIATES, OR Customer OR ITS AFFILIATES, FOR ANY AND ALL LIABILITIES AND CLAIMS ARISING IN CONNECTION WITH THE TERMS (REGARDLESS OF WHEN MADE) EXCEED THE TOTAL FEES PAID BY Customer TO POBAL UNDER THE APPLICABLE ORDER FOR THE SERVICE IN QUESTION IN THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN.
IN NO EVENT WILL POBAL OR ITS AFFILIATES, OR CUSTOMER OR ITS AFFILIATES, BE LIABLE FOR ANY OF THE FOLLOWING DAMAGES OR LOSSES WHATSOEVER ARISING FROM OR IN CONNECTION WITH ANY ORDER OR THE TERMS (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES; (B) LOSS OF BUSINESS OR GOODWILL, SALES, USE, PROFITS, OR REVENUE, OR LOSS OF OR CORRUPTION TO DATA OR CONTENT; OR (C) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OF SERVICES.
6.4.3 CARVE-OUT. THE LIMITATIONS AND EXCLUSIONS IN SECTION 6.4.1 AND SECTION 6.4.2 DO NOT APPLY TO LIABILITY FOR (I) DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S NEGLIGENCE OR MISCONDUCT; (II) A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 6.6; (III) A PARTY’S BREACH OF SECTION 4 (TO THE EXTENT NOT DUE TO A SECURITY INCIDENT OR A SECURITY INCIDENT CAUSE); (IV) THE VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (V) A PARTY’S OR ITS REPRESENTATIVES’ FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
THIS SECTION 6.4 APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR FUNDAMENTAL BREACH, HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES OR LOSSES IN QUESTION OR EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED EACH ORDER AND THE TERMS, INCLUDING THE PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THE TERMS.
6.5 Indemnification by Pobal.
Pobal will defend, indemnify, and hold harmless Customer, its officers, directors, employees, contractors, Affiliates, Authorized Users and agents (the “Customer Indemnitees”) from and against any and all liabilities, losses, damages, claims, and expenses, including legal fees (collectively, “Losses”) to the extent arising from any allegation that the Services, the Software or their use in accordance with the terms hereof infringe a third party’s Intellectual Proprietary Rights.
Notwithstanding Section 6.5, Pobal has no obligation hereunder and will be indemnified by Customer to the extent any infringement claim or litigation, or any liabilities, losses, damages, costs or expenses, including reasonable lawyers’ fees (“Losses”), arises as a result of: (a) use of any of the Services, Work Product or Pobal Materials in violation of the Terms; (b) any modification to any of the Services, Work Product or Pobal Materials by a party other than Pobal or its authorized agents; (c) any combination of any of the Services, Work Product or Pobal Materials with any computer program, software, hardware or equipment where such claim of infringement would not exist without such combination; or (d) use of any of the Services, Work Product or Pobal Materials after Pobal notifies Customer to discontinue such use. 6.5.2 Additional Infringement Remedies. In the event that any Services performed or Deliverable supplied by or through Pobal in connection with any Order or any Pobal Materials becomes, or in Pobal’s reasonable opinion, is likely to become, the subject of a Claim of infringement, or if Customer is prevented from using the Services, the Work Product or the Pobal Materials by reason of a Claim of infringement, Pobal shall make commercially reasonable efforts, at Pobal’s expense, to (i) modify the applicable component of the Services, Work Product or Pobal Materials so that there is no longer any infringement, provided that the modification does not adversely affect the functionality or performance capabilities of the Work Product, Services or Pobal Materials; (ii) procure for Customer Indemnitees the right to continue using the infringing component of the Work Product, Services or Pobal Materials on terms not less favorable than those provided in the Terms; or (iii) replace the infringing Services, Work Product or Pobal Materials with functionally equivalent non-infringing Services, Work Product or Pobal Materials that satisfy the warranties and covenants herein. In the event that the foregoing are not reasonably feasible within ninety (90) days after Customer is advised by Pobal to cease using the allegedly infringing Deliverable, Service or Pobal Materials, then either Party may terminate the Services and Pobal shall refund all unused fees directly attributable to the infringing Services, Work Product or Pobal Materials previously paid by Customer, including any unused prepayments received by Pobal for Services or Work Product not provided as a result termination under this Section or as a result of Customer being advised to cease using the Services or Work Product as set out herein, as liquidated settlement of any liability other than the foregoing obligation of indemnification. 6.5.3 Sole Remedy. This Section 6.5 constitutes Customer’s sole remedy, and Pobal’s sole obligations, in respect of infringement claims, proceedings inclusive of litigation and arbitration, and demands.
6.6 Indemnification by Customer.
Customer shall indemnify, hold harmless and defend Pobal, its Affiliates, and each of their respective officers, directors, employees, agents, heirs, successors in interest from and against any and all Losses from any third-party claim to the extent arising from: (a) Customer Data; (b) Customer’s or any Authorized User’s breach of the Terms; (c) Customer’s or any Authorized User’s, breach of any applicable laws, rules or regulations; (d) Customer’s or any Authorized User’s, fraud or willful misconduct; (d) any property damage or personal injury caused by Customer or any Authorized User; or (e) Customer’s or any Authorized User’s financial, business or commercial judgments.
6.7 Indemnification Procedures.
The indemnification obligations on the part of either party hereunder are conditional upon: (a) the indemnifying party being notified in writing promptly of the indemnified party’s receipt of notice of the claim (provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations under Section 6.5 or Section 6.6, except to the extent of any material prejudice to the indemnifying party as a direct result of such failure); (b) the indemnifying party having sole control over the defense or settlement of such claim; and (c) the indemnifying party being given the necessary authorization, information and full co-operation and assistance by the indemnified party for the defense of same (at the indemnifying party’s cost); provided in all cases, however, that the indemnifying party shall not make any admission against the indemnified party’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on the indemnified party without the indemnified party’s prior written consent.
7.1 Independent Contractors.
Customer and Pobal are independent contractors, and nothing in any Order or the Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party is an agent or representative of the other or is authorized to make any warranties or assume or create any other obligations on behalf of the other.
7.2 Force Majeure.
Except for payment obligations, neither party will be liable to the other party for any delay in performance or failure to perform due to any Force Majeure Event; provided, that the party that is unable to perform has taken reasonable and customary measures to mitigate the effects of any such delays or nonperformance. In any such event, the party that is unable to perform shall promptly notify the other party and shall use its reasonable to remedy the failure or delay. If a party seeks to excuse itself from its obligations under any Order or the Terms due to a Force Majeure Event, that party shall promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance, the anticipated period of delay or non-performance and in the case of Pobal, the expected date of resumption and the details of any contingency plans that will enable Pobal to minimize the length of the delay.
7.3 Export Controls.
Customer acknowledges and agrees that the Software Services, Support or Pobal Materials may be subject to export controls under United States and other export control Laws. Customer shall not directly or indirectly, whether to an Affiliate or a third party: (a) export, re-export, transfer, or release (herein referred to as “export”) any component of the Software Services, Support or Pobal Materials, to any prohibited or restricted destination, person, or entity; or (b) access or use or allow any Authorized User, Affiliate or third party to use the Software Services, Support or Pobal Materials in a manner prohibited or restricted by export control Laws. Customer shall comply with all applicable export controls Laws at all times.
7.4 Audit; Inspection.
During the Term, and upon at least 14 days’ prior written notice to Customer, no more often than once per annum Pobal shall have the right, during normal business hours, to audit the manner of use of the Services solely in accordance with the scope of audit agreed to by the parties in advance of such audit, each party’s consent to such scope of audit not to be unreasonably withheld, and under Customer’s reasonable supervision. Pobal will ensure that the audit is conducted in a manner that will result in minimal disruption to Customer’s business.
7.5 Governing Law; Venue.
The laws of the State of California shall be applied to the Terms, without reference to conflicts of law principles, and the parties submit to the exclusive jurisdiction of (a) The United States District Court for the Central District of California (to the extent it has subject matter jurisdiction); or (b) the Superior Court of California, County of Los Angeles; but the Parties agree that Pobal may seek equitable relief in any venue it so chooses. This Terms shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded.
The parties shall not assign or transfer (including by operation of law) any Order or the Terms, without the prior written consent of the other and any attempted assignment or transfer shall be null and void and shall constitute a material breach of the Terms. In addition to and notwithstanding the foregoing, if the ownership of Customer at any time shall pass out of the majority control of its then-current owners by sale of stock or assets, merger or otherwise, Customer shall give Pobal not fewer than 30 days’ prior written notice to the effective date of any change of control. Pobal shall have the right to terminate any or all affected Order(s) by providing written notice to Customer within the later of 60 days following (a) receipt of such notice of change of control; or (b) the date such change of control occurs. If Pobal elects not to exercise the foregoing termination right, any successor-in-interest to the Order(s) as a result of the change of control shall assume all rights and obligations of Customer and shall be responsible for adhering to the terms thereof. Any attempted assignment in violation of this Section 7.6 will be null and void. The Terms shall be binding upon, shall enure to the benefit of, and shall be enforceable by the parties and their permitted successors and assigns.
7.7 Entire Agreement; Amendments.
Each Order and the Terms represent the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with respect to its subject matter. There are no oral or written collateral representations, agreements or understandings. The Terms may not be modified except in a written document signed by the parties.
In the event of any conflict among the Terms or any Order, the terms of the Order shall prevail only with respect to the Services and pricing specified in such Order, as well as any provisions in the Terms that are specifically excluded or modified in such Order. Except as may be specifically provided for in a particular Order, any such exclusion or modifications contained in any Order shall not modify the Terms with respect to any other Order.
7.9 Headings; Interpretation.
The section and subsection headings used in the Terms are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Terms. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively.
7.10 Waiver; Severability.
The failure of a party to insist upon strict compliance with any term or condition of the Terms on any occasion shall not be construed as a waiver with regard to any subsequent failure to comply with such term or condition. No waiver of any term or condition of the Terms, including any Order, shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms of service hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law, and the parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in the Terms is limited by law, then Pobal’s liability will be limited to the greatest extent permitted by law.
7.11 Electronic Signature.
Your acknowledgement of the Terms constitutes your electronic signature binding you to same with the same force and effect as if you had physically signed and delivered the same.
Notwithstanding the termination or expiry of the Terms, all obligations which either expressly or by their nature are to continue after the termination or expiry of an Order shall survive and remain in effect, including, without limitation, Sections 3.1.5, 3.1.6, 3.2.1, 3.2.2, 4, 6 and 7 hereof.
7.13 Notices. All notices and other communications under the Terms shall be in writing and shall be deemed to have been duly delivered if delivered by hand or sent by nationally recognized overnight carrier, or prepaid registered or certified mail, return receipt requested, with acknowledgment by the receiving party as of the date received, to the address listed in the first paragraph above, or to such other address as either party shall specify in a written notice to the other.
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