Terms & Conditions
Last updated March 19, 2021
This Subscription Terms of Service ("Agreement") is entered into by and between the Pelcro entity set forth below ("Company") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company. (the “Services”) Subscription management platform, authentication, dynamic paywall, payment services, customer relationship management, analytics, and other services that may be offered by Company and its affiliates (the “Service(s)”).
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Pelcro pursuant to any Pelcro ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Initial Service Term: (the “Initial Service Term”) is defined in the Order Form year starting from the date on which the Services Fees, defined below, are invoiced.
Service Capacity: (the “Service Capacity”) The number of monthly active subscriptions (any subscription that has not yet expired) is limited and the number of monthly authenticated users (end-users with an email and password) are limited according to the plan selected in the Order Form while signing up. You can learn more about the pricing plans by visiting the pricing page here. The overage fee per additional 1,000 active subscriptions is $100 per month and the overage fee per additional 1,000 authenticated users is $10 per month, which shall be charged to Customer as of the first additional active subscription or authenticated user above either (i) the Service Capacity or (ii) each additional tranche of 1,000 additional active subscriptions or authenticated users, as applicable.
Services Fees: (the “Services Fees”) is set according to the selected plan in the Order Form, billed monthly subject to the terms of Section 4 herein.
Implementation Services: (the “Implementation Services”) Company will provide Customer the additional services described in any signed Statement of Work (“SOW”) signed separately. Additional development, and consulting may be requested by the Customer at an additional hourly rate. Implementation Fee (one-time): (the “Implementation Fee”) set forth in the SOW is based on an estimated set number of hours, subject to the terms herein. Additional hours greater than the estimated hours will be subject to the hourly rate.
This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative email and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with technical support services in accordance with Company’s standard practices as found here .
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sub licensable license to use such Software during the Term only in connection with the Services.
2.2 Subject to the terms of the Agreement and payment of fees as set forth below, Customer shall be granted a non-exclusive, non-transferable license to access and use the Software for the Customer website(s) entered during the account creation process (the “Website(s)”).
2.3 Customer may use the Company’s API to make calls to the API and develop, implement and distribute applications for use by the Customer in connection with the Services.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policies”) as found at https://www.pelcro.com/en/policies which are incorporated by reference herein, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Customer shall be responsible for obtaining and maintaining its own equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the above-mentioned Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.6 Company shall provide availability of the Services (other than Implementation Services) ninety-nine percent (99%) of the time on a yearly basis except for Excluded Downtime (as defined below) (the “SLA”). “Excluded Downtime” means any interruption in the availability of the Services, due to scheduled maintenance or a Major External Event (as defined below), or unavailability necessitated through the improper use of the Services by the Customer or due to services requested by the Customer. A “Major External Event” shall mean any major systems event external to the Company, including, but not limited to, natural disasters, acts of war or terrorism, civil disturbances, action by a governmental entity, strike, power outage (beyond the capabilities of the Company’s hosting service provider’s backup power systems), fiber cuts, denial of service or other internet hacking attacks, or other causes beyond Company’s reasonable control that makes performance commercially impractical.
2.7 Customer acknowledges and agrees that its use of the Services is also governed by the Company Data Processing Agreement at https://www.pelcro.com/legal/data-processing (as applicable), which includes the approved list of Sub-processors at https://www.pelcro.com/legal/sub-processors . All of the foregoing are hereby incorporated by reference into this Agreement.
2.8 Company will take all reasonable steps to protect information received from Customer from loss, misuse, or unauthorized access, disclosure, alteration and/or destruction. Company will use a variety of physical, administrative and technical safeguards designed to help protect it from unauthorized access, use and disclosure. Company has implemented best-practice standards and controls in compliance with internationally recognized security frameworks. Company also uses encryption technologies to protect data. Company’s security practices can be found here.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data.
3.3 Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days and will assist the customer with best efforts and in good faith with the transfer of this data.
3.4 Company will keep backups of the Customer Data in order to reduce risk of data corruption or data loss.
3.5 Notwithstanding anything to the contrary, Customer acknowledges and agrees that (i) software of Company, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (iii) the Structured Data, as well as any trademark, invention (patentable or unpatentable), patent application, patent, work, trade secret, source code, object code, know-how and any intellectual property relating to the foregoing (the “Intellectual Property”) is the exclusive property of Company and shall remain under its control. Customer undertakes to refrain from taking, authorizing or taking part in any action whatsoever that undermines, directly or indirectly, the scope and validity of the Intellectual Property. For the purpose of this Agreement, “Structured Data” means a dataset comprised of the anonymized Customer Data, or a subset thereof, and/or data emanating from other sources, and/or data processed by or generated by functionalities of the Company’s software. No rights or licenses are granted to Customer except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Inquiries should be directed to Company’s customer support department.
4.2 Customer must keep a valid credit card on file with Company to pay for all incurred and recurring Fees. Company will charge applicable Fees to the credit card account that Customer authorizes (“Authorized Card”), and Company will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
4.3 Implementation Fees are due on the Effective Date of this Agreement. Services Fees are due from the date the invoice is issued by the Company according to the Order Form.
4.4 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services.
4.5 Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in Canadian Dollars (USD).
4.6 Payment processing services for the Services are managed by the Company but provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By entering into to this agreement or continuing to use the Services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Company enabling payment processing services through Stripe, Customer agrees to provide the Company accurate and complete information about the Customer and the Customer’s business, and the Customer authorizes the Company to share its information and transaction information related to the Customer’s use of the payment processing services provided with Stripe. The Stripe Services Agreement can be accessed by visiting the following link https://stripe.com/ca/legal.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 This Agreement may be terminated by either party if the other party breaches any representation or warranty or fails to cure any failure to perform any material obligation within thirty (30) days after notice from the other party specifying in reasonable detail such failure to perform. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 1 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of Canada without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date. The parties shall work together in good faith to issue at least one mutually agreed upon press release within thirty (30) days following the date the Company’s Services are utilized in Customer’s production environment, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. Customer agrees (i) that Company may identify Customer as a recipient of services and use Customer’s logo in presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by the Company on its website, marketing material and sales material for promotional purposes. The Agreement is our entire agreement relating to Customer’s use of the Services and supersedes any prior or contemporaneous agreements on that subject.
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