Effective Date: May 15, 2020
These Customer Terms of Service (the "Customer Terms") describe your rights and responsibilities when using our Pluckd software as a service (SaaS) offering (the "Services"). If you are a Customer (defined below), the Customer Terms of Service govern your access and use of our Services. If you are being invited to an account set up by a Customer, the User Terms of Service (the "User Terms") govern your access and use of the Services.
Customer and Authorized User Definition
"Customer" is the organization that you represent in agreeing to the Contract. If your account is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the account. For example, if you signed up using a personal email address and invited a couple of friends to work on a new startup idea but haven't formed a company yet, you are the Customer.
Signing Up Using a Corporate Email Domain
If you signed up for a plan using your corporate email domain, your organization is Customer, and Customer can modify and re-assign roles on your account (including your role) and otherwise exercise its rights under the Contract. If Customer elects to replace you as the representative with ultimate authority for the account, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.
Customer relationship with Authorized Users
Individuals authorized by Customer to access the Services (an "Authorized User") may submit content or information to the Services, such as messages or files ("User Data"), and Customer may exclusively provide us with instructions on what to do with it. These choices and instructions may result in the access, modification or deletion of certain or all User Data.
The Customer will inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services.
Acceptance of the Terms
You can accept the Terms by checking a checkbox or clicking on a button indicating your acceptance of the terms; by signing (electronically or manually) this agreement or an order of services that refers to or incorporates this agreement; or by using the Services.
If you do not agree to the Customer Terms of Service, do not use any of our Services. If you agree to the Customer Terms of Service and do not agree to any User Terms of Service terms, do not use the corresponding Service.
If you purchase subscription(s), create an account (i.e., a digital space where a group of users may access the Services), invite users to that account, or use or allow use of that account after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of the Customer before proceeding.
Use of the Services
We grant the Customer a limited right to use the Services for the Customer's internal business. You may use the Services only as permitted in this Customer Terms.
Customer must comply with the Customer Terms and ensure that its Authorized Users comply with the Customer Terms and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so.
We aren't responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Data.
The Services are not intended for and should not be used by anyone under the age of 16. The Customer must ensure that all Authorized Users are over 16 years old.
The Customer may not resell, reframe, distribute, use on a timeshare, outsourced, or service bureau basis, or otherwise directly commercialize the sale or lease of the use of the Services.
The Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.
Our Removal Rights
If we believe that there is a violation of the Contract that can simply be remedied by Customer's removal of certain Customer Data we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
A subscription allows an Authorized User to access the Services. No matter the role, a subscription is required for each Authorized User. Each subscription is for a single Authorized User for a specified term and is personal to that Authorized User. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an "Order Form"). Each Authorized User must agree to the User Terms to activate their subscription.
Customers may be entitled to a number of free subscriptions. Additional subscriptions can be acquired via an Order. The number of free subscriptions and/or fees for additional subscriptions are specified at the "Plan" interface in the Site's Account section.
An Order is effective when Customer signs or registers a Credit Card (whichever happens first) and We provision the Services. Order acceptance may be subject to Our credit approval process. The Customer may need to provide additional information in order to register for and/or use certain Services. The Customer warrants that the information provided during the registration process is accurate.
Choosing to be a Beta Tester
Occasionally, we look for beta testers to help us test our new features. These features will be identified as "beta" or "pre-release," or words or phrases with similar meanings (each, a "Beta Product"). Beta Products may not be ready for prime time so they are made available "as is," and any warranties or contractual commitments we make for other Services do not apply. Should Customer encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.
Feedback is Welcome
The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel.
Changes to Services
We may enhance and/or change the features of the Services at Our discretion as long as We do not materially reduce the core functionality of the Services. We also may offer additional optional features and/or functionalities in addition to the "standard" Services at an additional cost.
Subscriptions and Renewals
The following subscriptions options are available to order the Services:
One (1) month Services subscriptions;
All subscriptions automatically renew for additional periods equal to the preceding term and the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term.
Renewal Period Notice
There will be no such notive for One (1) month Services subscriptions. Therefore, it is the Customer's responsibility to be aware of such Services subscriptions term.
Downgrade for Non-Payment
If any fees owed to us by the Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Services to free plans until those amounts are paid in full, so long as we have given Customer ten (10) or more days' prior notice that its account is overdue. Notwithstanding the second paragraph of the "Providing the Services" section below, the Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality, reduced number of Authorized Users allowed, and potential loss of access to Customer Data .
For Customers that purchase our Services, fees are specified at the "Plan" interface in the Site's Account section — and must be paid in advance.
Payment obligations are non-cancelable and, except as expressly stated in this Customer Terms or in the Order Form, fees paid are non-refundable.
If the Customer is late in paying an invoice, any sum not paid by the Customer when due shall bear interest from the due date until paid at the lesser of: (i) ten (10) percent per annum or (ii) the maximum rate permitted by law. In addition, if the Customer is more than thirty (30) days late in paying an invoice, we may downgrade the Services as described in the section "Downgrade for Non-Payment".
Customers may withhold amounts that they reasonably and in good faith dispute as to the amounts owed. Customers will pay any undisputed fees. If you withhold any payment due to a dispute, you must notify us in writing of any disputed fees within fifteen (15) days of the invoice date and provide us with written details about why you dispute the invoice. After we receive notice of the dispute, we will work with you in good faith to resolve the dispute. If we are unable to resolve the dispute within thirty (30) days, Pluckd may terminate the Services after giving You an additional ten (10) days advance written notice.
Customers shall pay all sales, value added, general standard and similar taxes (exclusive of taxes based on our net income), levies, duty, or charges imposed by any governmental authority, related to or arising from our providing or the Customer's use of the Services. Pluckd reserves the right to gross up the price for the Services in any invoice if a withholding prevents Pluckd from receiving the amount specified in such invoice.
We adjust a customer's bill amount to reflect any plan changes made in the middle of a billing cycle. Pluckd refunds what the customer did not use from their original subscription plan (based on the number of days remaining before renewal) and then immediately charges your customer for the remaining days of the new plan.
Termination for Cause
We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. The Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by the Customer or its Authorized Users in violation of applicable law.
Termination Without Cause
Customers may terminate their free subscriptions immediately without cause. We may also terminate Customer's free subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.
Effect of Termination
Upon any termination for cause by the Customer, we will refund the Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of Customer Data. During the term of an account's subscriptions, Customers will be permitted to export or share certain Customer Data from the Service. Following termination or expiration of an account's subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.
Providing the Services
We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer's prior written instructions; provided, however, that "prior written instructions" will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.
Be assured that we will not materially decrease the functionality of a Service during a subscription term. For any breach of a warranty in this section, Customer's exclusive remedies are those described in the sections titled "Termination for Cause" and "Effect of Termination".
Keeping the Services Available
For all Service plans, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide Customer with advance notice (e.g., through the Services), if we think it may exceed five (5) continuous minutes.
Protecting Customer Data
Ownership of Content
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.
Responsibility for the Content and Services
Customers are solely responsible for their and their Authorized Users' content and their and their Authorized Users' use of the Services. We do not endorse and have no control over what Authorized Users submit to the Site. We cannot guarantee the accuracy of any Content provided by you or by other users.
We do not monitor your Content, Sites, or Use of the Services. You will comply with the User Terms of Service. We may investigate any complaints and violations or suspected violations of this Customer Terms regarding the Content or violations of the User Terms that come to our attention. If we reasonably determine there is a breach of this Customer Terms regarding the Content or a violation of the User Terms we may take action without liability to remedy the violation, namely refuse to post or remove violating Content, or restricting, suspending, or terminating your or your Authorized User's access to a Site or Services. We will make commercially reasonable efforts to notify you before taking such actions so that you can remedy the issue. However, we reserve the right to act immediately if we reasonably believe that allowing such Content or use of the Services would expose us to civil, regulatory or criminal liability. You agree to indemnify, defend and hold harmless us from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from your or your Authorized Users' violation of the User Terms.
Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.
Pluckd warrants that the Services will materially comply with its published specifications. If we breach this warranty, we will (at our option) repair or replace the Services within a reasonable time period or refund the fees for the period in which the Services did not materially conform to its specifications. In order to receive this remedy the Customer must promptly notify us of a breach of this warranty.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. In addition, the Services are not designed or licensed for use in environments requiring fail-safe controls (e.g., energy facilities, aircraft navigation/communication systems, life support or weapons systems).
Limitation of Liability
Neither party shall be liable for the following:
any indirect, incidental, exemplary, special or consequential damages;
loss or corruption of data;
loss of revenues, profits, goodwill or anticipated sales or savings;
procurement of substitute goods and/or services; or
interruption to business or wasted administrative time.
The Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
These exclusions apply regardless of the theory of liability, or whether related to your use or inability to use the Services, or otherwise. These exclusions apply even if either party has been advised of the possibility of such damages. However, the above exclusions will not apply to your liability for a material breach by the Customer of Pluckd's intellectual or proprietary rights.
OTHER THAN IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER'S LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE "PAYMENT TERMS" SECTION ABOVE.
This limitation of liability applies whether the claims are contract, tort (including negligence), or otherwise. This limitation of liability for Services is in the aggregate and not per incident. Except for your breach of Pluckd's intellectual or proprietary rights, neither party may bring a claim under this Customer Terms more than eighteen (18) months after the event that creates the action or claim.
The sections titled "Feedback is Welcome", "Our Removal Rights", "Use of the Services", "Payment Obligations", "Protecting Customer Data", "Effect of Termination", "Data Portability and Deletion", "Disclaimer of Warranties", "Limitation of Liability" and "Survival," as well as all of the provisions under the general heading "General Provisions," will survive any termination or expiration of the Customer Terms.
Customer grants us the right to use Customer's company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer's standard trademark usage guidelines as provided to us from time-to-time. We don't want to list customers who don't want to be listed, so the Customer may send us an email to [email protected] stating that it does not wish to be used as a reference.
Neither us nor the Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, pandemics, and governmental action.
Relationship of the Parties
The parties are independent contractors. The Customer Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Customer Terms.
Email and Pluckd Messages
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to the Customer through the Services (e.g., a site notification). Notices to Pluckd will be sent to [email protected], except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to [email protected] Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
As our business evolves, we may change these Customer Terms (but not any Order Forms). If we make a material change to the Customer Terms, we will provide the Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer's account or by messaging Customer through the Services. The Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If the Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer's acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Neither party may assign or delegate 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). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying Pluckd of any changes. Any purported assignment in violation of this section is void. A party's sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party's election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The Customer will comply with all applicable laws and regulations related to your receipt and use of the Services. These laws include (without limitation): (a) data protection and privacy laws and regulations, and, (b) labor laws. It is the Customer's sole responsibility to ensure it has the right to use all features of the Services in its jurisdiction. The Services may not be available in all countries and it may not be available for use in any particular location. We may modify or discontinue Services features to comply with applicable laws and regulations. Pluckd will comply with all applicable laws in the provision of the Services.
Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of Portugal without regard to principles of conflict of laws and without regard to the United Nations Convention on the International Sale of Goods. The parties agree that the Courts located in Lisbon shall have exclusive jurisdiction over any action arising out of or relating to any provisions contained herein, and waive objection to venue in these courts, and any such action shall be brought and prosecuted only in these courts.
Regardless of the above governing law, Pluckd may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such Pluckd's intellectual property or proprietary rights.
Order of Precedence and Integration
The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) the Customer Terms and (3) finally any other documents or pages referenced in the Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Customer Terms, and all such terms or conditions will be null and void.