Terms Of Service
Last updated December 21, 2022
These “Terms of Service” are an integral part of the Order Form (and overall relationship) between P1ston, Inc., a Delaware corporation (“We,” “Us,” “Our,” or “P1ston”) and You, the entity identified in the Order Form (“You” or “Your” or “Yours”). Together, these Terms of Service, the Order Form(s), and all written quote letters, exhibits, schedules, policies, addendums, amendments, and annexes incorporated herein by reference, constitute the “Agreement” between You, the party accessing the Services, and Us, pursuant to an Order Form which both You and We have executed. An Affiliate of Yours may use the Services only to the extent set forth in an Order Form.
P1ston provides online software services, accessed via permitted users and associated security controls, which operate on a stand-alone basis and/or optionally integrate with Your enterprise resource planning system, accounting system, manufacturing execution system, and/or other internal data management or workflow software systems (together, or independently, simplified herein as “ERP”). These software services automate and streamline various activities related to Your inbound or outbound supply chain. For example, one P1ston software module serves to structure and streamline workflows and data related to open purchase orders (“POs”) with Suppliers (see definition below). These software services are made available by Us online via a login link at https://app.p1ston.com, email interaction, and/or other web pages designated by Us. Such software services provided by P1ston, together or alone, are referred to herein as the “Services” — the definition of which we expand upon in the following section of this Agreement.
a. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of more than 50% of the voting interests of the subject entity or the actual ability to control the management decisions of the entity.
b. “Aggregate Data” means aggregated, non-identifiable data, which is combined with data from other entities and cannot be reasonably used to identify You or Your customers or Your Suppliers, which results from Your use of the Services and/or Our provision of the Services to You.
c. “Customer” or “Customers” mean the entity or entities that pay You for products and/or services. Generally, in the context of the Services, You ship physical product to a Customer. For further clarity, a Customer is typically on the receiving end of Your outbound supply chain.
d. “Documentation” means any proprietary documentation made available to You by P1ston for use with the Services, including any documentation available on Our website or otherwise, and including the User Guide.
e. “Intellectual Property Rights” means patent rights, trademark rights, copyrights, moral rights, publicity and privacy rights, sui generis database rights, and all other proprietary rights, throughout the world.
f. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, or programs.
g. “Order Form” means the documents for placing orders for the Services, including any accompanying letters, memos, amendments, or addendums, that are entered into between the parties or any of their Affiliates. By entering into an Order Form or using the Services, an Affiliate agrees to be bound by these Terms of Services as if it were an original party hereto.
h. “P1ston Materials” means collectively Reports, Software, Services and Documentation.
i. “Professional Services” means project-oriented, non-recurring work, specifically done to support Your Implementation, unique Needs, and Requests. Professional Services include, but are not limited to, such things as software engineering, project management, and quality assurance work carried-out to integrate Your ERP with P1ston. Another example would include special reporting requests that fall outside of those provided within the Services You subscribe to.
j. “Services” as defined above, include both Trial Services and Services for which You or Your Affiliates (1) are charged a fee by Us, or (2) are not charged a fee but agree to use within certain specific bounded conditions on the Order Form, such as a limited number of users, limited number of transactions per period, limited number of file attachments, etc. The Services are provided solely as a remote online service (i.e., as a “software as a service” or “SaaS” product).
k. “Software” means any computer code (source, object or otherwise) which is used in providing the Services, including Our proprietary software which generates any reports (“Reports”). You are not entitled to physical access to any Software under this Agreement.
l. “Supplier” or “Suppliers” mean the entity or entities that You pay for products and/or services. Affiliates and You may also refer to a Supplier as a “Vendor” or Suppliers as “Vendors”, and herein, these terms mean the same type of entities. Generally, in the context of the Services, Suppliers ship physical product to You. For further clarity, a Supplier is typically on the shipping end of Your inbound supply chain.
m. “Trial Services” refers to Services which are provided to You on a temporary basis and without fee.
n. “User Guide” means any online user guide for the Services that is currently, or may in the future, be provided for Your reference, accessible via login at https://app.P1ston.com, as updated from time to time.
o. “Users” means individuals who are authorized by both You and Us to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords. Users may include but are not limited to Your employees, consultants, contractors, Suppliers/Vendors, Customers, agents, and third parties with whom You transact business.
p. “Your Data” means all electronic data or information submitted by You (including by Your Users and by Suppliers/Vendors from whom You obtain any materials) to P1ston.
Subject to the terms and conditions of the Agreement and Your payment of all fees required pursuant to the Agreement, P1ston grants to You and Your Users a terminable, revocable, non-exclusive, non-transferable license (without the right to sublicense) during the term of the applicable Order Form, to access and use the Services solely in accordance with applicable User Guides/Documentation and solely for Your internal business purposes. P1ston reserves the right to modify the Services or Software at any time. You understand that this Agreement grants certain rights of access only, and that nothing in this Agreement shall be interpreted to require delivery of a copy of any Software to You or installation of a copy of such Software upon Your computers or systems. This Agreement is not a sale of Software (but rather only a limited right of use) and does not transfer to You any title or any ownership right or interest in any P1ston Materials nor in any Intellectual Property Rights in the P1ston Materials. Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms of Services, is void from its inception. P1ston reserves all rights not expressly granted under this Agreement.
3.1. Provision of Services. We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms during the subscription term set forth in the Order Form. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by us regarding future functionality or features.
3.2. Subscriptions. Services are purchased in various “quantity types” as specified on an executed Order Form. Quantity types may include (i) per User seat license, (ii) by PO or PO line-item tier, such as < 100 open line-items at a time, 100 – 249, 250 – 499, etc. (iii) by annual aggregate PO value, or (iv) other mutually agreed upon method.
4. OUR ADDITIONAL OBLIGATIONS
4.1. Compliance with Applicable Law. We shall provide the Services in accordance with applicable laws and government regulations.
4.2. Data Security and Ownership. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, availability, confidentiality and integrity of Your Data. We shall not (a) modify Your Data except to the extent necessary to provide the Services to You, (b) disclose Your Data except as compelled by law in accordance with the “Compelled Disclosure” paragraph below or as expressly permitted in writing by You, or (c) access Your Data except: to provide or improve the Services, to prevent or address service or technical problems, at Your request in connection with customer support matters, or to use Aggregated Data as permitted hereunder. P1ston hereby acknowledges that, as between You and P1ston, You own all legal right, title, and interest in and to Your Data and all Intellectual Property Rights therein. Notwithstanding the foregoing You hereby grant P1ston a non-exclusive and perpetual right and license to (i) store, transmit, manipulate/transform, copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary for P1ston to perform its obligations under this Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Aggregate Data in connection with its business services and offerings.
4.3. Support Policy. We shall provide emailed support during normal business hours of 8:00 am – 6:00 pm ET. We shall use commercially reasonable efforts to make the Services available to Users, assuming User’s hardware, software and internet connections are functioning properly, at least 99.9% of the time during any month, excluding: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond our reasonable control, including without limitation, failures of internet access, acts of God, acts of government, floods, fires, earthquakes, other weather events, war (declared or not), civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or denial of service attacks. In respect of planned downtime, we shall use reasonable efforts to provide you with at least 24 hours’ prior notice posted via the Services. Should you inform us by submitting an email to firstname.lastname@example.org of a failure to comply with the availability target set forth in this paragraph (including the dates and times of each unavailability incident that you are claiming) no later than 15 days after the end of a month in which we failed to meet the aforesaid availability target, then you shall be eligible for a 10% credit against payments owed to us for Services rendered for that month (prorated based on 1/12 of a yearly subscription cost to you). If the factual correctness of such request is confirmed by us and results in performance that does not meet the stated commitment, then we will issue the service credit to you within one calendar quarter following the quarter in which your request is confirmed by us. The remedies set forth in this paragraph represent your sole remedy and our sole obligation in respect of failure of the Services to be available for use.
The foregoing notwithstanding, Trial Services are not entitled to any support, and the obligations set forth in the preceding paragraph do not apply to Trial Services, for which all warranties are disclaimed. Further, we may change this Support Policy at any time by posting such change to the website and within the Services. Your rights will be determined by the policy in effect at the time the event took place.
5. YOUR ADDITIONAL OBLIGATIONS
5.1. Maintaining Access Controls; Backing Up Data. You are responsible for maintaining the security and confidentiality of any User accounts, access codes, passwords, connectivity standards or protocols, necessary to enable You to obtain access to the Services, and for notifying us of assigned User accounts that need to be terminated. You are also responsible for protecting and backing-up the data in your ERP system that is created, used, stored and/or transmitted in connection with the use of the Services. P1ston shall have no liability whatsoever for any loss of, or failure to recover, such data, or any loss or disruption caused by failure to properly back-up Your Data on a periodic basis.
5.2. Additional Obligations. You are also responsible for (a) Users’ compliance with this Agreement; (b) using the Services only in accordance with the Documentation and applicable laws and government regulations; (c) obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services; (d) paying all third-party fees and access charges (e.g., ISP, telecommunications) incurred while using the Services and providing sufficient bandwidth and network connectivity to ensure all Users can access and use the Services satisfactorily; (e) ensuring Your firewalls and proxies permit access to the P1ston URLs / IP Addresses through the TCP/IP Port which we advise You and meet any other technical specifications of which we reasonably advise You; (f) determining the security configurations of Your systems (e.g. password construction rules and expiration intervals); (g) promptly notifying us of any actual or reasonably suspected information security breaches, of which You become aware, including without limitation compromised User accounts; and (h) for periodically reviewing Your security configurations and access rights to determine if they are appropriate for Your needs.
5.3. Changes to Your ERP System. If You plan to modify Your ERP system in a way that may affect the functioning of Our Services to You, You will notify Us in advance so that We are aware of the change and may plan for it.
If You change Your ERP system to a different ERP provider and/or a different ERP system or roll out a new major release within the same ERP during the term, Professional Services may be required in order to maintain compatibility with Our Services. You agree to cooperate with Us in all reasonable ways to allow Us to update Our Services to work with Your changed systems.
Depending on the type and extent of ERP changes You need to make, Professional Services fees may apply. If so, We will quote You costs, and not proceed with the work until we have mutually agreed on a scope of work and associated costs.
5.4. Suspension. We may, in Our reasonable discretion, without prior notice, and without waiving subsequent termination rights, issue a warning or suspend Your account and access to the Services if You breach or threaten to breach this Agreement or if we are unable to verify or authenticate any information You have provided. Notwithstanding the foregoing, we shall endeavor to provide You with notice prior to suspending Your access (along with details as to the reason), except under exigent or emergency situations where we deem suspension reasonably necessary to prevent potential harm to Our or other’s networks or a potential illegal act (in which case we will give You notice as soon thereafter as is reasonably practicable). Furthermore, we will reinstate Your access as soon as You have demonstrated to Our reasonable satisfaction that the issue has been resolved and will not reoccur, unless we have terminated this Agreement for cause prior to that time.
6. PROPRIETARY RIGHTS
6.1. Our Rights in Services; License Restrictions. You acknowledge and agree that the P1ston Materials are the property of P1ston or its licensors, contain valuable assets, proprietary information and property of P1ston, and are provided to You only for use strictly in accordance with the terms and conditions of this Agreement. We reserve all rights, title and interest in and to the Services, including all related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein.
You agree not to do any of the following: (a) use the Services to upload, record or otherwise transmit any data that: infringes any third party’s Intellectual Property Right; violates any law, statute, ordinance or regulation; or is defamatory, trade libelous, threatening, harassing, obscene, harmful, or pornographic; (b) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (c) download, use, install, deploy, perform, modify, license, display, reproduce, distribute or disclose the P1ston Materials other than for Your own internal business purposes and only among Your Users; (d) sell, license, lease, transfer, rent, loan, pledge, or allow any third party access to, the P1ston Materials; provided, however, the parties acknowledge that Your Suppliers and/or Customers are permitted to access Our applications pursuant to the normal course of business; (e) modify, translate, reverse engineer (except to the limited extent required to be permitted by any applicable laws), decompile, disassemble, create derivative works based on, sublicense or distribute any P1ston Materials; (f) use the P1ston Materials for benchmarking, timesharing or service bureau purposes; (g) remove, alter or obscure any copyright notice, proprietary notice, labels or marks on the P1ston Materials; (h) bypass the measures we may use to prevent or restrict access to the Services or other security features; (i) share any user authentication information and/or password related to the Services with any third party to allow a third party to access the Services or P1ston Materials, (j) use P1ston Materials to develop any similar service; (k) use P1ston Materials in violation of any federal, state, or local law, rule, or regulation, or any third-party right; (l) take any action that imposes, or may impose an unreasonable or disproportionately large load on Our infrastructure; (m) upload Malicious Code or invalid data through the Services; or (n) collect information or content from Our website using automated means (such as harvesting bots, robots, spiders, or scrapers). You are responsible for all use (including the use by Your Users or any of Your employees or agents) of any P1ston Materials and for compliance with this Agreement.
6.2. Your Data. You agree that in connection with the Services, P1ston has the right to collect Aggregate Data resulting from Your use of the Services. P1ston will not use the Aggregate Data in any manner as to identify it as Your data. You further agree that, for purposes of this Agreement, the Aggregate Data shall not be considered Your Data. Subject to the limited rights granted hereunder, we acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any Intellectual Property Rights therein. Under no circumstances will P1ston be liable to You or to any person or entity for any alleged damages sustained by the distribution of Your Data as contemplated to provide the Services.
6.3. Suggestions. You hereby grant, and we shall have, a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, ideas, error identifications, recommendations, or other feedback provided by You, including Users, relating to the operation of the Services.
6.4. Publicity. Only during the term of the Agreement, P1ston shall have the right to publicize P1ston’s relationship with You as established by this Agreement, including by use of Your name, logo and trademarks (“Marks”), and linking to Your website, in sales presentations, on Our website, and also in customer lists for the purpose of advertising or publicizing P1ston’s business. Nothing in this Agreement will confer on P1ston any right of ownership or interest in Your Marks or the Intellectual Property Rights therein. You reserve all rights in Your Marks not expressly granted under this Agreement.
7. FEES AND PAYMENT
7.1. Fees and Invoices. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form: fees are based on Services purchased and not actual usage; payment obligations are non-cancelable, and fees paid are non-refundable. During a Services term as specified on the Order Form, you may request an expansion in the Services agreed to on the Order Form, and upon mutual agreement to the scope and fees of the Services expansion, you agree to pay in full, prior to implementation of the expanded Services, the agreed upon amount prorated through the end of the Services term. In contrast, any request for a reduction in the extent of Services provided will not go into effect until the start of a new Services term as specified on a newly executed Order Form. Unless stated otherwise on the Order Form, the initial annual fee is due in advance, within 30 days of execution of the Order Form, and thereafter all annual fees are due in advance prior to the start of the next annual period. You are responsible for providing complete and accurate billing and contact information to us and keeping it updated for all changes.
7.2. Overdue Charges. If any undisputed charges are not received from You by the due date, we may impose interest on such amounts at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. You are responsible for any collection and/or attorney’s fees we incur in attempting to collect any undisputed amounts that You owe us hereunder. In addition, if any undisputed amount is at least 15 days overdue, we may, without limiting Our other rights and remedies (but only after giving You at least 7 days prior notice), accelerate Your unpaid fee obligations under all Your Order Forms, so that all such obligations become immediately due and payable, and/or suspend Services until all amounts owed to us are paid in full.
7.3. Disputed Charges. In order for a charge to be considered disputed for purposes of the preceding section, You must (a) notify us in writing of the dispute by the time the payment for it would otherwise have been due; (b) have a reasonable and good faith basis for the dispute, which You must describe in Your notice to us in reasonable detail in order to give us an opportunity to address it; (c) pay the undisputed portion of the invoice owed to us by its due date; and (d) cooperate diligently to resolve the dispute.
7.4. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively—but excluding all taxes based solely on Our income, properties, or employees—the “Taxes”). You are responsible for paying all Taxes associated with Your purchase of Services. If we have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You have provided us with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.1. Definition of Confidential Information. “Confidential Information” means all non-public information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential/proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business and marketing plans, technology and technical information, product plans and designs, employee information, and business processes. Your Confidential Information shall include Your Data; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms. However, Confidential Information (other than Your Data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of Disclosing Party’s Confidential Information.
8.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care): (a) not to use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have confidentiality obligations to the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, a Receiving Party may disclose Disclosing Party’s Confidential Information to its attorneys, accountants, and potential investors, so long as such entities are bound by confidentiality agreements consistent herewith.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law (including by order of a governmental authority of competent jurisdiction) to do so, provided the Receiving Party: (a) gives the Disclosing Party prompt notice of such compelled disclosure (to the extent legally permitted); (b) discloses only the minimum amount necessary to comply with the legal requirement; and (c) provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Mutual Warranties. Each party warrants to the other party that it (i) has validly entered into this Agreement and has the legal power to do so; and (ii) will not knowingly transmit Malicious Code to the other party (provided that any file uploaded into the Services by the other party/its Users and then transmitted by warranting party is excluded from this warranty).
9.2. P1ston Warranties. P1ston warrants to You that (i) the Services will be provided in a good and workmanlike fashion generally consistent with the quality-of-service standards prevalent in the supply chain SaaS industry; (ii) the Services shall perform materially in accordance with the Documentation; and (iii) subject to Your ERP changes and Your request for Services changes contemplated in prior paragraphs, the functionality of the Services will not be materially decreased during a subscription term. If You inform us, with specificity and in writing, of any breach of these warranties, we shall endeavor to cure such breach, if any, for up 30 days, and if we fail to do so, Your sole and exclusive remedy shall be the right to immediately terminate this Agreement upon providing written notice and to receive a prorated refund for any prepaid fees You have paid for any periods of time during which You will not receive access to the Services as a result of such termination (“Unearned Fees”). The warranties in this paragraph do not apply to Trial Services.
9.3. Your Warranties. You warrant to P1ston that You: (i) are the owner or authorized to use and share Your Data; (ii) are solely responsible for Your Data; and (iii) acknowledge and agree that P1ston neither controls nor guarantees the accuracy, integrity, or quality of Your Data.
9.4. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE ARISING BY COURSE OF CONDUCT OR COURSE OF DEALING, AND INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL ACTIONS YOU TAKE (OR ACTIONS YOU FAIL TO TAKE/OMISSIONS YOU MAKE) BASED ON ANY INFORMATION YOU RECEIVE FROM US. WE EXPRESSLY DISCLAIM ANY WARRANTIES BASED ON ANY REPORTS, GUIDANCE, SUGGESTIONS OR RECOMMENDATIONS WHICH YOU MAY RECEIVE FROM US.
9.5. Beta Services and Trial Services. From time to time, You may be permitted to try Our products or services that are not generally available in production to Our customers (“Beta Services”). You may accept or decline any such trial in Your sole discretion. Any Beta Services will generally be designated as beta, pilot, limited release, “not generally available”, developer preview, non-production, or by a similar description. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES, AND ALL WARRANTIES REGARDING BETA SERVICES ARE EXPRESSLY DISCLAIMED. TRIAL SERVICES ARE ALSO PROVIDED AS-IS WITH NO EXPRESS OR IMPLIED WARRANTIES, AND ALL WARRANTIES REGARDING TRIAL SERVICES ARE EXPRESSLY DISCLAIMED
10.1. Indemnification by P1ston. We shall defend You (for purposes of this paragraph, including any of Your or Your Affiliates’ officers, directors, and/or agents, the “Indemnified Party(ies)”) against any claim, demand, suit, or proceeding made or brought against the Indemnified Parties by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the United States Intellectual Property Rights of a third party (a “Claim Against You”), and shall indemnify the Indemnified Parties from and against any damages, attorney fees and costs pursuant to any verdict against the Indemnified Parties or any settlement we have agreed to settle in respect of a Claim Against You. Provided, however, that Our indemnification obligations with respect to a Claim Against You will not apply to the extent that the claim is based on or relates to (i) any modification to the Services made by persons other than P1ston and without P1ston’s authorization, (ii) Your Data, (iii) the combination of the Services (or any component thereof) with any software, hardware, equipment or materials not provided by us, (iv) Indemnified Parties’ use of the Services in violation of the terms, conditions or restrictions set forth in the Agreement, or (v) Indemnified Parties’ use of the Services after we have instructed You in writing to cease use because of the potential for an infringement claim, or Indemnified Parties’ use of a superseded version of the Services if we have made a newer version available to You at no additional charge.
10.2. Right to replace Infringing Services. Without limiting Our obligations under the preceding section, in the event of a Claim Against You, or if we reasonably believe the Services may infringe or misappropriate any Intellectual Property Rights, we may in Our discretion and at no cost to You: (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Services, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any Unearned Fees.
10.3. Indemnification by You. You shall defend us (for purposes of this paragraph, including any of Our or Our Affiliates’ officers, directors, and/or agents, the “Indemnified Party(ies)”) against any claim, demand, suit or proceeding made or brought against the Indemnified Parties by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law (a “Claim Against P1ston”), and shall indemnify the Indemnified Parties from and against any damages, attorney fees and costs pursuant to any verdict against the Indemnified Parties or any settlement You have agreed to settle in respect of a Claim Against P1ston.
10.4. Indemnification Procedures. In order to receive indemnification hereunder, the Indemnified Party must comply with the following: (a) the Indemnified Party shall promptly notify the indemnifying party in writing of each such claim or suit and provide the indemnifying party with all information known to Indemnified Party relating thereto; (b) the indemnifying party shall be given sole control of the defense and settlement (although the Indemnified Party may participate with its own counsel at its own expense); and (c) the Indemnified Party must cooperate as reasonably requested with the indemnifying party in the settlement and/or defense. The Indemnified Party will be reimbursed for its reasonable out-of-pocket expenses incurred in providing any cooperation requested by the indemnifying party. The indemnifying party is not entitled to settle any claim without the Indemnified Party’s prior written consent (not to be unreasonably withheld) unless the settlement involves only the payment of monetary damages by the indemnifying party.
10.5. Exclusive Remedy. All paragraphs in this “Indemnification Section” constitute, in aggregate, the indemnifying party’s sole liability to, and the Indemnified Parties’ exclusive remedy against, the other party for any type of claim described in this Indemnification Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY INCLUDING NEGLIGENCE) SHALL EXCEED THE LESSER OF $250,000 OR THE AMOUNT PAID (OR THAT SHOULD HAVE BEEN PAID) BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY INCLUDING NEGLIGENCE) EXCEED THE TOTAL AMOUNT PAID (OR THAT SHOULD HAVE BEEN PAID) BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTON OF THIS AGREEMENT.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, COST OF COVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED (INCLUDING FOR NEGLIGENCE), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date on which it is executed and continues until all Services subscriptions granted in accordance with this Agreement have expired or been terminated.
12.2. Term of Purchased Services. Services subscriptions that You purchase commence on the “Start Date” specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Services subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term. Unless we have given You written notice at least 60 days before the end of the current subscription term of a larger pricing increase, per-unit pricing during any renewal term shall not exceed 5% above the prior term.
For the sake of clarity, giving written notice means using one of the communication methods described in the Notice sub-paragraph under the General Provisions paragraph below.
12.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice to the defaulting party of a material breach of this Agreement if the defaulting party fails to cure such breach within such notice period, or (ii) if the other party becomes the subject of a petition in bankruptcy (which in the case of involuntary filing, remains in effect for at least 30 days) or any other proceeding relating to insolvency, receivership, or liquidation, or makes an assignment for the benefit of creditors.
12.4. Termination if We Cease Providing the Services. If we stop providing the Services generally to customers at any time, we may terminate this Agreement and all Order Forms upon 30 days’ prior written notice to You; provided that in such case we will refund to You the prorated Unearned Fees.
12.5. Effects of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Services granted to You under this Agreement will immediately terminate. Upon Your written request made within 60 days after the effective date of termination of Your paid subscription, we will make available to You, for download, one or more files of Your Data in comma separated value (.csv) format along with attachments in their native format, unless You have terminated without cause or we have terminated for cause as permitted as specified above. After such 60-day period, we shall have no obligation to maintain or provide any of Your Data and shall thereafter delete Your Data from Our systems in accordance with Our data retention policies. If You terminate with cause as specified above, we will refund to You any Unearned Fees covering the remainder of the term of all subscriptions after the effective date of termination. If we terminate for cause as specified above, You are required to immediately pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Sections labelled Definitions, Proprietary Rights, Fees and Payment, Confidentiality, Disclaimer, Indemnification, Limitation of Liability, Effects of Termination, Disputes/Arbitration; Governing Law, and General Provisions shall survive any termination or expiration of this Agreement.
13. DISPUTES, ARBITRATION, GOVERNING LAW
13.1. Binding Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator (“Arbitrator”) chosen in accordance with the AAA Commercial Arbitration Rules and Mediation Procedures (using then in place AAA Expedited Procedures) (“Rules”). Unless provided otherwise herein, Arbitrator may not award non-monetary or equitable relief of any sort. Arbitrator shall have no power to award damages inconsistent with this Agreement, and the parties expressly waive their right to obtain such damages in arbitration. All aspects of the arbitration shall be treated as confidential. Neither the parties nor Arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests. Arbitrator shall render its award in writing and will include the findings of fact and conclusions of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the Arbitrator’s award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, Arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs (if applicable), to the prevailing party (should there be one) in any such arbitration. In the event of conflict between these Terms of Services and the Rules, these Terms of Services shall be first in precedence.
13.2. Waiver of Jury Trial; Individual Basis; Equitable Relief. THE PARTIES SURRENDER AND WAIVE THE RIGHT TO SUBMIT ANY DISPUTE TO A COURT OR JURY, OR TO APPEAL TO A HIGHER COURT. The Parties agree to arbitration on an individual basis. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in this Agreement shall prohibit either party (prior to the commencement of arbitration) from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm which may be inadequately compensable by monetary damages, for example in respect of a threatened breach of the confidentiality or license-restriction provisions hereof. Nothing in this “Disputes, Arbitration, Governing Law” section shall be construed to prohibit P1ston from using an attorney or collections agency to collect unpaid fees.
13.3. Where Held; Language; Governing Law. The place of arbitration shall be Albany (Albany County), NY, USA, and the proceedings shall be conducted in the English language. The Agreement shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and Arbitrator shall follow the law and judicial precedents that a United States District Judge sitting in the Northern District of New York would apply to the dispute.
14. GENERAL PROVISIONS
14.1. Notice. Except for Legal Notices: (a) We may provide You notice via the Services or via email to Your contact person or to the email address on your latest Order Form, (b) You may provide Us notice to the P1ston contact email address on the Order Form or to the contact email address published in the Services, as updated from time to time, or (c) either party may provide notice via an electronic messaging platform (the “Messaging Platform“) in the event that both parties have mutually agreed, in writing, to use the Messaging Platform. A notice is deemed received on the first business day after posting or sending.
Legal Notices must be in writing. Legal Notices are deemed received only upon actual delivery (or refusal) and shall be sent (if to You): to the address set forth on Your most recent Order Form (or such address as You have updated in writing), and (if to P1ston) to P1ston, Inc., attn: CEO, 414 Union St, Schenectady, NY 12305. “Legal Notices” means any notice of termination (except if the recipient confirms receipt of the email by a human-generated response), notices alleging breach hereof, or notices pertaining to an indemnifiable claim.
Notwithstanding anything in this Agreement to the contrary, You or We can use email as a method of sending Legal Notices. To send a Legal Notice by email, the sending party will include “LEGAL NOTICE” in the email subject field and direct the Legal Notice email to the other party’s email address appearing in the most recent Order Form.
14.2. Export Compliance. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You covenant that You will not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from P1ston under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, P1ston from and against any fines or penalties that may arise as a result of Your breach of this provision.
14.3. Relationship of the Parties; No Third-Party Beneficiaries; Waiver. The parties are independent contractors to each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, and neither party has the right to bind the other party to any agreement, understanding, or contract. There are no third-party beneficiaries to this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. A waiver of any default is not a waiver of any subsequent default.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that a party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Entire Agreement; No Reliance; Order of Precedence. The Agreement (as defined above), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. You acknowledge that You have not relied on any oral promises or any other terms, representations, commitments, understandings, or matters, other than those expressly set forth in writing in the Agreement. If we update this Agreement, we will email You notice or post notice to you in the Service, and You will be bound by such change 30 days after such posting/notice, unless You provide us written notice within such 30 day period stating that You do not consent to such change. No modification, amendment, or waiver of any provision of this Agreement shall be effective against us unless in writing and signed by us. The order of precedence in the event of any inconsistency among different documents comprising the Agreement is as follows (from highest to lowest): (a) any provision of an Order Form expressly stating that is intended to modify or supersede a provision of these Terms of Services; (b) these Terms of Services; (c) Order Forms; (d) any online policy. Other than the mutually executed Order Form(s), no POs, preprinted forms, order documentation, or any other forms provided by You (“Forms”) shall be deemed to vary, add to, or delete any provisions hereof, and all such unilateral terms of Yours shall be null and void, even if we execute the Forms.
14.6. Miscellaneous. These Terms of Services are in effect pursuant to their incorporation into the executed Order Form; an Order Form (and/or this Agreement) may be executed by signature (electronic or “ink”), or via clicking to acknowledge acceptance, via click wrap and/or in counterparts, including counterparts delivered electronically, each of which will be deemed to be an original and such counterparts together will constitute one and the same agreement. P1ston shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control including acts of God, weather events, labor strife, acts of war (declared or not) or terrorism, acts of government, civil unrest, or denial of service attacks. If any provision of the Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties (or deleted if reformation is not feasible), and the remainder of the Agreement shall continue in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to the Agreement. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. The terms “including” and “includes” are not to be construed as words of limitation but rather shall be interpreted as if followed by the words “but [is/are] not limited to”.