Terms and Conditions
PIER Systems, Inc.
GENERAL TERMS AND CONDITIONS
These PIER General Terms are incorporated into and constitute a material part of the PIER Customer Agreement between PIER Systems, Inc. ("we," "our" or "Provider") and the customer identified on the cover page of this Agreement ("you").
Section 1. Definitions
"Acceptable Use Policy" means the Acceptable Use Policy attached as Exhibit A, which we may revise as provided in Section 2.4.
"Confidential Information" means any nonpublic information, whether of a technical, business or other nature that (a) is disclosed to or otherwise received by the other party in connection with this Agreement, and (b) the recipient knows or has reason to know is confidential or proprietary information of the other party or a third party. Confidential Information does not include any information that (i) was known to the recipient before receiving the same from the discloser; (ii) is independently developed by the recipient without reliance on any Confidential Information of the discloser; (iii) is acquired by the recipient from another source without restriction as to use or disclosure; or (iv) is or becomes generally known to the public through no fault or action of the recipient.
"Content" means data, information, images, text, graphics, video or other content.
"Customer Content" means Content that you upload to the PIER Platform or furnish to us for use in connection with this Agreement.
"Documentation" means all user guides, operating instructions and other documentation we provide to you for the PIER Platform.
"Fee Schedule" means the fee schedule attached as Exhibit B, which we may revise as provided in Section 5.1.
"Hosting, Upgrade and Support Services" means the hosting, upgrade and support Services we provide to you in accordance with the Service Level Agreement.
"Launch Date" means the date we provide the access codes that enable you to access the PIER Platform.
"PIER Center" means a single dashboard and management interface for all communications including content creation and distribution, contacts and inquiries, controlling a single website (internal or external).
"PIER Platform" means our hosted proprietary web-based application for managing communications as further described in attached Exhibit D.
"Planning, Provisioning and Training Services" means the services described in attached Service Agreements.
"Proprietary Rights" means patents, copyrights, trademarks, trade secrets or other intellectual property rights.
"Service Level Agreement" means the Service Level Agreement Terms attached as Exhibit C.
"Service Period" means the time period during which we are obligated to host, upgrade and support the PIER Platform under this Agreement as specified on the cover page of this Agreement.
"Services" means the services we provide under this Agreement, which may include development, hosting, planning, provisioning, implementation, support, training and professional services.
"Services Order" means an order for additional Services in the form provided by us. A Services Order is not effective until signed by both parties.
Section 2. Our Obligations
2.1 We will host and support the PIER Platform for the number of PIER Centers for which you have paid applicable fees. Our specific hosting and support obligations are described in the Service Level Agreement.
2.2 Beginning on the Launch Date and during the rest of the Service Period, we will allow you and your authorized users to use the PIER Platform for the number of PIER Centers for which you have paid applicable fees.
2.3 We will use commercially reasonable efforts to provide the Services in a timely and professional manner and to achieve the service levels set forth in the Service Level Agreement.
2.4 We will notify you in writing or by email of any changes to the Acceptable Use Policy. We may change the Acceptable Use Policy to meet legal requirements or requirements of our third-party service providers.
2.5 We will promptly respond to your questions or concerns about the Services.
Section 3. Your Obligations
3.1 You will access and use the PIER Platform in accordance with the Documentation. You will not use the PIER Platform to provide services to third parties other than to your clients in the ordinary course of your business.
3.2 You will provide all equipment, software, networks, internet access and other items necessary to access the PIER Platform. Such items must meet the requirements set forth in the Service Level Agreement.
3.3 You will be responsible for your users' compliance with this Agreement, including the Acceptable Use Policy. We may restrict or deny access to any user who violates this Agreement, engages in any activity detrimental to us or our service providers, or uses the PIER Platform in violation of applicable laws.
3.4 You will be responsible for the security of passwords and access codes we issue to you and any activities that occur under such passwords and access codes. You will immediately notify us of any unauthorized use or disclosure of such passwords or access codes.
3.5 You are responsible for the accuracy of the Customer Content and ensuring that the Customer Content does not infringe or violate any Proprietary Rights. We will have the right, but not the obligation, to remove any Customer Content that we believe violates any applicable law or the rights of others.
3.6 You are responsible for compliance with all import and export control laws and regulations. You must obtain at your sole cost and expense all import, export, and re-export approvals and lic enses required for products, transfers, services and technical data delivered and will retain documentation evidencing compliance with those laws and regulations. You may not sell, transfer, export or re-export the PIER Platform, or any of Our services or technical data for use in activities that involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use the PIER Platform, Our services or technical data in any facility that engages in activities relating to such weapons or missiles. In addition, the PIER Platform, Our services or technical data may not be used in connection with any activity involving nuclear fission or fusion, or any use or handling of any nuclear material.
Section 4. Changes
4.1 You may request additional Services or PIER Centers by submitting a signed Services Order. If we agree to provide such Services or PIER Centers, we will sign the Services Order and return a copy to you. The Services Order will become part of this Agreement when we sign it. The fees for such additional Services or PIER Centers will be set forth in the Services Order.
4.2 We may change the PIER Platform from time to time provided that our changes do not significantly diminish any features or functions of the PIER Platform.
Section 5. Fees
5.1 You will pay the fees specified on the cover page of this Agreement and in any Services Orders. We may increase the subscription fees on an annual basis upon 30 days’ notice by e-mail to site administrator, which increase will become effective at the time of renewal. For any other Services, we may increase our fees upon 30 days' notice by e-mail to site administrator.
5.2 Unless otherwise agreed, you will reimburse us for all reasonable travel and other out-of-pocket expenses we incur in the performance of the Services at 20% above cost.
5.3 We will invoice you according to the schedule on the cover page of this Agreement or in a Services Order. If no schedule is specified for a particular Service, then we will invoice you on a monthly basis for Services performed in the prior month. Unless otherwise specified on the cover page of this Agreement or in a Services Order, each invoice will be due within 30 days after receipt.
5.4 If you fail to pay any invoice when due, the past due amount will bear interest at 1.5% per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid.
5.5 The fees do not include any sales, use or similar taxes or other charges assessed or imposed by any governmental authority. You will pay or reimburse us for all such taxes and charges.
5.6 If you fail to pay any amount when due, we may suspend the performance of any Services and/or restrict access to the PIER Platform.
5.7 We have the right to assess a 3% processing fee on any payment made pursuant to credit card.
5.8 You will advise us in writing of the name and contact information for your designated PIER Center site administrator and will notify us in writing of any changes to your PIER Center site administrator.
Section 6. Proprietary Rights
6.1 We retain ownership of all right, title and interest (including all Proprietary Rights) in the PIER Platform, excluding the Customer Content. We will also own all software and other technology we develop under this Agreement.
6.2 You will not authorize or encourage anyone to (a) reverse engineer, decompile or disassemble any source code or otherwise attempt to discover any source code or trade secrets related to the PIER Platform; (b) modify or create derivative works based on the PIER Platform; or (c) access or use the PIER Platform except as expressly permitted hereunder.
6.3 You will not use any of our trademarks without our prior written approval. If we approve, you will use our trademarks solely to identify yourself as a user of the PIER Platform and in accordance with our trademark use guidelines. We may terminate your right to use any trademark if you violate this Agreement or your use is detrimental to us.
6.4 You retain ownership of all right, title and interest in the Customer Content. You grant us a license to use, display, publish, transmit and otherwise use the Customer Content to perform our obligations under this Agreement.
Section 7. Confidential Information
The recipient will protect the Confidential Information of the discloser against any unauthorized use or disclosure to the same extent that the recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but will not use less than reasonable efforts. The recipient will use Confidential Information of the discloser solely for the purposes for which it is provided by the discloser. The parties agree that this Section 7 will not prohibit (a) any use or disclosure that is necessary for the recipient's performance of its obligations under this Agreement; (b) any use or disclosure required by applicable law; provided, that the recipient uses reasonable efforts to give the discloser reasonable advance notice thereof; or (c) any use or disclosure made with the prior written consent of the discloser. You will not disclose the terms of this Agreement to any third party without our written consent except as required by applicable law.
Section 8. Term and Termination
8.1 The term of this Agreement begins on the date of this Agreement and continues for the Service Period unless sooner terminated as provided below. At the end of the initial Service Period, this Agreement will automatically renew for successive one-year periods unless a party gives the other notice of nonrenewal at least 30 days before the end of the then-current Service Period.
8.2 You may terminate this Agreement by giving us at least 60 days' prior written notice of termination. However, such termination will not relieve you from any payment obligations that would have accrued had you not terminated this Agreement before the end of the 12-month Service Period.
8.3 Beginning 12 months after the Launch Date, we may terminate this Agreement upon at least 60 days' notice. If we terminate this Agreement under this Section 8.3, we will refund you the unused portion of any fees paid hereunder.
8.4 Either party may terminate this Agreement upon notice if the other party breaches this Agreement and fails to cure the breach within 30 days after receipt of notice of the breach.
8.5 Upon termination of this Agreement you will no longer have access to the PIER Platform, we will have no obligation to provide any further Services, and each party will return to the other all Confidential Information of the other party in its control or possession.
8.6 Upon termination of this Agreement we will destroy or erase all Customer Content unless you sign and submit a Services Order for archival Services within 10 days after the effective date of termination. If you submit such a Services Order, we will archive your PIER Center for the period specified in the Services Order; provided, that you timely pay us for such Services.
Section 9. Warranty and Disclaimer
9.1 We warrant to you that the PIER Platform will operate substantially in accordance with the Documentation for a period of ninety (90) days after the Launch Date. We will use commercially reasonable efforts to correct the PIER Platform if it fails to conform to our warranty if you give us written notice of any noncompliance within the warranty period. If we cannot correct the PIER Platform within 30 days of the date of your notice, you will have the right to terminate this Agreement and receive a refund of all amounts you have paid. These are your sole remedies for breach of warranty.
9.2 EXCEPT FOR THE WARRANTY STATED IN SECTION 9.1, WE DO NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY OR NONCOMPLIANCE IN THE PIER PLATFORM, THE SERVICES OR OTHER ITEMS FURNISHED BY OR ON BEHALF OF US UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND TITLE OR NONINFRINGEMENT). WE DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, ALWAYS AVAILABLE, MEET YOUR REQUIREMENTS OR BE COMPLETELY SECURE.
9.3 Our warranty in Section 9.1 does not apply to any failure resulting from misuse of the PIER Platform.
Section 10. Intellectual Property Infringement
If a third party sues you claiming that your use of the PIER Platform infringes a United States patent, copyright, trademark or other intellectual property right, we will defend you from the claim and pay any damages award imposed on you or any settlement amount we agree to as a result of the claim. We may modify the infringing or allegedly infringing components of the PIER Platform so that it is noninfringing. We will have no obligation under this Section 10 to the extent the claim arises out of the Customer Content or any misuse of the PIER Platform. In order to obtain the benefit of this Section 10, you must (a) give us prompt written notice of the claim; (b) permit us to control the defense and settlement of the claim; and (c) cooperate with us (at our expense) in the defense and settlement of the claim.
Section 11. Limitations on Provider's Liability
11.1 WE WILL NOT BE LIABLE TO YOU, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, REVENUE OR USE) ARISING OUT OF ANY PERFORMANCE, NONPERFORMANCE OR BREACH UNDER THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE PIER PLATFORM OR ANY SERVICES.
11.2 OUR LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD BEFORE THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
11.3 We will not be liable for any delay or failure as a result of any cause beyond our reasonable control, including, without limitation, fire, explosion, earthquake, storm, flood, wind or the elements; court order; act or delay or failure to act by any civil, military or other governmental authority; riot, insurrection, sabotage or war; unavailability of required equipment, supplies, goods, utilities, services or items to be provided by any third party; or any act, delay or failure to act by you or any third party.
Section 12. Miscellaneous
12.1 Each party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction in connection with its activities under this Agreement.
12.2 Each party is an independent contractor and not a partner or agent of the other. We are in the business of developing and hosting applications for others, and we will have the right to provide to third parties services that are the same or similar to the Services.
12.3 Unless otherwise set forth in the Agreement, any notices permitted or required under this Agreement will be in writing and given in person or by courier, mailed by registered mail (return receipt requested and postage prepaid), or transmitted by facsimile (with confirmation) at the respective address or facsimile number on the cover page of this Agreement (or a substituted address or facsimile number a party may inform the other of by notice hereunder). Notice will be deemed effective upon the earlier of (a) actual delivery to the party; (b) five days after the date the notice was postmarked within the United States; or (c) receipt by facsimile transmission with confirmation. All notices given by facsimile will be immediately followed by delivery in person or mailed by first-class mail.
12.4 If any provision of this Agreement is held by a court to be illegal, invalid or unenforceable, the rest of this Agreement will be legal, valid and enforceable to the fullest extent possible.
12.5 You will not assign this Agreement or any of your rights under this Agreement, directly, by operation of law or otherwise, without our prior written consent. We may assign this Agreement without your consent. Subject to the foregoing, this Agreement will be fully binding on and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section 12.5 will be void.
12.6 This Agreement will be governed by the laws of the State of Washington, without reference to its rules relating to choice of law to the contrary. You consent to the jurisdiction of state and federal courts located in King County, State of Washington, with respect to any claim arising under or by reason of this Agreement. You will not prosecute any action, suit or claim arising under or by reason of this Agreement except in such courts.
12.7 This Agreement (including the attached or referenced Exhibits) constitutes the entire agreement, and supersedes any and all prior agreements, between us and you with respect to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound thereby.
EXHIBIT A
Acceptable Use Policy
The Services may only be used for lawful purposes. You agree to comply with this Acceptable Use Policy (“AUP”) and all applicable laws and regulations. Uses of the Services in violation of this AUP or any applicable law or regulation are prohibited and shall constitute a material breach of the Agreement and may result in termination of the Agreement and your right to use the Services.
- Improper uses of the Services include, but are not limited to:
- Attempting to accomplish any unlawful purpose, including but not limited to storing, sending, or disseminating any material by uploading, posting, email or other means (“Transmission”) that is in violation of any local, state, or federal law or regulation, that is libelous, obscene, threatening, defamatory, which infringes upon the intellectual property rights of another, or which constitutes or encourages conduct constituting a criminal offense or gives rise to civil liability;
- Transmission of any material which a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, or otherwise inappropriate, whether or not Transmission of the material is unlawful;
- Transmission of any material that you do not have a right to make available under any law or under any contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non disclosure agreements);
- Transmission of any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- Transmission of any material that contains software viruses or any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or which impedes others’ ability to use the Services;
- Impersonating any person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity, and/or forging headers or otherwise manipulating identifiers in order to disguise the origin of any material transmitted through the Services;
- Transmission of unsolicited commercial email or the collection of responses from unsolicited messages;
- Transmission of chain letters;
- Attempting to probe, scan or test the vulnerability of a system or network in any form;
- Using any method to breach security or authentication measures;
- Engaging in hacking, denial of service attacks, malicious or destructive behavior in any form.
- We shall have the right, but not the duty, to deny or disable any PIER Center, which in our discretion, is found to contain pornographic or obscene material or material that violates the terms of this AUP.
- The PIER System may not be accessed, either directly or indirectly, by any country embargoed by the U.S., or is considered by the U.S. as a supporter of international terrorism without proper authorization from the U.S. government. (Cuba, Iran, North Korea, Sudan, and Syria).
