Terms and Conditions
Master Subscription Agreement
Master Subscription Agreement
This Master Subscription Agreement (this “Agreement”) is dated [__], 2020 (the “Effective Date”) by and between Pipefy, Inc., a Delaware corporation (“We,” “Us” or “Our”) and [__________] (“You” or “Your”).
“Affiliate” means any entity that 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 or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time.
“Invoice” means the document issued by Us, which may be in electronic form, through which the Services are charged to You.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Virtual Account” means the account created by You for use of the Online Platform and access to the functionalities of the Purchased Services offered in this environment.
“Non-Pipefy Applications” means a Web-based or other hosted software application, or offline software application, that is provided by Us or a third party and interoperates with a Service and is not Pipefy Technology.
“Purchase Order” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Purchase Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means the Services offered by Us to You or Your Affiliates pursuant to this Agreement, including by means of a Purchase Order or other means creating a binding obligation.
The solutions offered by Us and offered to You as native solutions used by Us to optimize the experience in the use of the “Solutions”, will be Our responsibility, as an integral part of the “Acquired Solutions”.
“Online Platform” means the virtual environment made available at the website app.pipefy.com. through which the User, after creating the Virtual Account, can acquire the Solutions and later access the Purchased Solutions.
“Intellectual Property” means all the trade secrets, patents and patent applications, trademarks (either registered or not registered and including any goodwillacquired in these trademarks), service trademarks, commercial names, copyrights, moral rights, rights on inventions and all the other intellectual property rights and property rights (either registered or not registered, any prior application and all the rights to enforce the precedent one), and all the other equivalent rights which can exist in any part of the world.
“Services” means the functionalities made available within the sphere of the Online Platform in consideration to the contracting of subscription of the “Purchased Services”. This concept contemplates both the Services offered as free of charge tests and the ones paid, including off-line associated components we might make available, as described in the Documentation. The “Services” do not include Non-Pipefy Applications.
“Pipefy Technology” means the technology and Intellectual Property licensed by Us, strictly to enable Users’ access to the Purchased Services, including computer programs (software), websites, networks and equipment.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-Pipefy Applications.
2. Our responsabilities
2.1. Availability of Purchased Services. Upon the subscription of our Services, either by means of acceptance of our terms in this Agreement in the Online Platform, or the subscription of a physical copy of this Agreement by means of a Purchase Order (prevailing what happens earlier and in any case indicating the full understanding and acceptance of the terms and conditions proposed herein), as applicable,we will (a) make the Purchased Services available to You pursuant to this Agreement and the respective Purchase Order (b) provide Our standard support for the Purchased Services to You at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services available on-line 24 hours a day, 7 days a week, except for (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, Internet service provider failure or delay, internet connection, Non-Pipefy Applications, or service blocking.
2.3 Retention and Deletion of Your Data. Your data will be stored in our database as long as your agreement with us lasts, even if they were deleted through the application or API.
2.4 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations in accordance with this Agreement, except as otherwise specified herein.
2.5 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. Use of Services
3.1 Subscriptions. Unless otherwise provided for in this Agreement or in any Purchase Order (if applicable) (a) the rights of use and access to the Purchased Services are acquired as subscriptions, for as long as the Virtual Account linked to the subscription is active, or for the time period determined in the Purchase Orders, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 Usage Limits. The use and access to the Purchased Services are subject to limits, including in relation to the number of Users specified in the Virtual Account or in the Purchase Order, as applicable. Unless otherwise specified, (a) the quantity foreseen in the Virtual Account or in a Purchase Order, as applicable, refer to the number of Users authorized to use the Purchased Services, and the use limits of any hired functionalities, being expressly agreed that the use of the Services by any other user in excess of the contracted number will be additionally charged by Us; b) the User identification cannot be shared with any other person; and (c) a User identification may be reassigned to a new individual replacing one who no longer uses the Services, assuming, in this case, that the total number of users recorded as a result of this Agreement or of the Purchase Order which regulates the use of the Services is maintained. If the limit of Users is exceeded, regardless of previous approval, We will be authorized to carry out the pro-rata collection of the additional quantities for the availability of access to the Services applicable, in accordance with Section 5.2 (Values and Payment).
3.2.1 Exceeding Usage Limits. The use and access to the Purchased Services are subject to limits, in the event of exceeding the usage limits of any functionality from your current plan, We may, with 24-hour prior notification, allocate you to a new plan that corresponds to Your current use of the features. After the automatic plan upgrade, if You do not agree with it, You must reduce your usage limits and contact US within the next 24 hours through the support channels.
3.3 Your Responsibilities. You will: (a) be responsible for compliance with this Agreement by the Users, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use the Services in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non- Pipefy Applications You use in connection with the Services.
3.4 Usage Restrictions. You will not (a) make any access available or use any Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, as well as offer any Service within the sphere of a service bureau or outsourcing offering, (c) use the Services to store or transmit slanderous content, illegal or unlawful or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any tool or third-party data contained therein, (f) attempt to gain unauthorized access to any tool or its related systems or networks, (g) permit direct or indirect access to or use of any tool in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function or user interface thereof, as well as not reproduce, modify, create or prepare works deriving from any Documentation or Pipefy Technology (i) copy the Services except as expressly permitted by Us, (j) frame or mirror any part of any of the Services, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Tool in order to build a competitive product or service, (l) carry out reverse engineering, reverse assembly or decomplication of any Services, including the Pipefy Technology, or (m) attempt, in any way, to extract the source code of any Pipefy Technology.
4. Non-Pipefy Providers
4.1. Acquisition of Non-Pipefy Products and Services. We or third parties may make available third-party products or services, including, for example, Non- Pipefy Applications and other consulting and assistance services. Any acquisition by You of such non-Pipefy Services, products or services, and any exchange of data between You and any non-Pipefy provider, is under your exclusive responsibility and We will have no participation or interference in the relationship between You and the applicable non-Pipefy provider. We do not warrant or support Non-Pipefy Applications or other non-Pipefy products or services, whether or not they are designated by Us as “certified” or otherwise, except if otherwise expressly specified by Us in the documentation that formalizes the acquisition of the Purchased Services.
4.3. Integration with Non-Pipefy Applications. The Purchased Services may contain tools designed to interoperate with Non-Pipefy Applications. To use such tools, You may have to obtain access to Non-Pipefy Applications and may be requested to grant Us access to Your account(s) on the Non-Pipefy Applications. If the provider of a Non-Pipefy Application ceases to make the Non-Pipefy Application available for interoperation with the corresponding Services on reasonable conditions, We may cease providing access to the Services Service without entitling You to any refund, credit, or other compensation.
5. Values and Payment for Purchased Services
5.1. Fees. You will pay the fees specified in the Virtual Account and/or in the Purchase Order, as applicable, related to the subscription of the Purchased Services. Except as otherwise specified herein or in a Purchase Order, (i) the fees are based on the Purchased Services and on the quantity of Users added in the Virtual Account and the functionalities hired by plan, not on its effective usage, (ii) payment obligations are non-cancelable and the values paid are non-refundable, and (iii) any potential request to exclude User, or downgrade the initial amount of functionalities acquired, causing reduction of the quantities purchased during the period of the subscription in question, will not imply reimbursement of any value paid or to be paid under the terms of the Agreement or Purchase Order, but rather a credit so that You can appoint new Users to replace the former ones. Our collections do not include credit card, bank or foreign exchange tariffs, taxes, duties, charges, contributions, launchings, obligations or fees, and/or governmental collections of any nature. You are responsible for paying all the fees associated and/or resulting from the contracting of the Purchased Services.
5.2. Invoicing and Payment. You will provide Us with and update as necessary valid credit card information on the credit card, so that we may at all times process payments for the subscription fees of the Purchased Services as they become payable. By providing such information to Us, You authorize Us or any third parties contracted by Us to process payments to charge such credit card for all Purchased Services listed in the Order Form for the values corresponding to all the Purchased Services for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Services). Exceptionally, in those cases where the contracting of the Purchased Services is not formalized by means of the Online Platform, the payment of the corresponding Invoice will be made as anticipated in the Purchase Order that formalizes the contracting. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting our rights and remedies, (a) it will be assessed a charge of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) We may condition future subscription renewals to payment terms shorter than those specified in Section 5.2 (Invoicing and Payment) and (c) We may disregard the application of any business conditions granted at the time of the subscription. Additionally, upon a 30-day delay in the payment, You expressly agree that We may (i) use third parties such as debt collection companies, to charge and collect the amount due, or (ii) inform the debt to credit protection agencies and credit bureaus.
5.4. Suspension of Access and Acceleration. If you fail to respect the obligations You took under this Agreement, We can suspend the access to the Services and your Virtual Account can be considered deactivated until You are in compliance with Your obligations. In the case of material breaches, the suspension will be immediate, regardless of written notification.
Exceptionally for payment issues, if You fail to make any payment, in accordance with this or any other document which regulates the contracting of Our Services, until such amounts are paid in full, We will, with (i) 7 or more days overdue in case You have authorized Us to charge to Your credit card, or (ii) 30 or more days past due in case of payment by other means specified in the Purchase Order, give You at least 5 days’ prior notice in cases of payment with credit card and 10 days’ prior notice for payments of the Invoice, informing that Your account is overdue, in accordance with Section 12.3 (Notices), before suspending the access to the Services or deactivate Your Virtual Account and inform the Credit Protection Service.
5.5. Payment Questionings. Without prejudice to the provisions in Sections 5.3 (Overdue Charges) and 5.4 (Suspension of Service and Acceleration) above, in case You are questioning/disputing the applicable charges on a clear form, reasonable and in good faith and are cooperating diligently to resolve the dispute, We will attempt, as long as these negotiations persist, endeavor our best efforts to resolve the dispute as fast as possible and avoid the above-mentioned measures.
5.6. Future Functionality. You agree that Your purchases are not contingent to any expectation related to (i) the delivery of any future functionality or features which are relative to the Services, or (ii) to any oral or written public comments made by Us regarding functionality or features to be developed.
6. Proprietary Rights and Licenses
6.1. Reservation of Rights. Subject to the terms and conditions are expressly foreseen hereunder, We reserve all the rights, title, and interest relative to the Services, including all Our related intellectual property rights.
6.2. License by Us to Use Pipefy Technology. We grant to You a worldwide, non-exclusive license for a determined time, on Our rights relative to the Pipefy Technology, strictly to use the Purchased Services, subject to the terms of this Agreement, of the Documentation and any possible Purchase Order.
6.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited-term license, as long as the contracted subscriptions persist, to host, copy, transmit and display Your Data, and any Non-Pipefy Applications and program code created by or for You, when applicable, as necessary for Us to provide the access to the Services in accordance with this Agreement. We may use the Data collected for the purpose of raising anonymized information and metrics, not directly linked to You.
6.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Users relating to the operation of the Services.
6.5. Commercial References. You authorize Us to mention You and, where relevant, use a reproduction of Your brand or logo as a commercial reference, press releases, case studies, at shows or events, in Our sales documentation, and on Our Online Platform.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Confidential Information of each party includes the terms and conditions of this Agreement, the Virtual Account and all the Purchase Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) 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 and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Purchase Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
8. Representatios, warranties, exclusive remedies and disclaimers
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that (a) this Agreement, the Purchase Order and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during the subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 4.3 (Integration with Non-Pipefy Applications), We will not materially decrease the functionality of the Purchased Services during the subscription term, and (e) the Purchased Services will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY LOSSES OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. Mutual indemnification
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Services results in a violation of misappropriated such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), or is approved by You) and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions.
The above defense and indemnification obligations will only apply to the measure and extent the Services are the reason for the Claim and do not apply to the extent that a Claim against You results from a non-Pipefy Application or Your breach of this Agreement.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data or Your use of any Services (i) violates this Agreement, (ii) infringes or unduly uses such third party’s intellectual property or (iii) violates the applicable law (a “Claim Against Us”) and will indemnify Us from any damages, attorney fees, and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), or is approved by Us and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. Limitation of Liability
10.1 Limitation of Liability. EXCEPT IN CASES OF SERIOUS NEGLECT OR INTENTIONAL MISCONDUCT, NEITHER PARTY’S LIABILITY FOR DIRECT DAMAGES RESULTING OR WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT,EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER.
THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS DO NOT APPLY TO OBLIGATIONS OF (I) CUSTOMER’S PAYMENT UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES) (II) INDEMNIFICATION OF A PART SET FORTH IN SECTION 9 (INDEMNIFICATION), AND/OR (III) TO ANY VIOLATION OR MISAPPROPRIATION BY THE USER OF ANY OF OUR INTELLECTUAL PROPERTY RIGHTS.
10.2. Exclusion of Consequential and Related Damages. EXCEPT IN CASES OF SERIOUS NEGLECT OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2.1 Fighting Corruption and Money Laundering. Within the limits of the objective of the present relationship, We undertake, including on behalf of Our employees, members, representatives, directors, and third parties, as well as Our partners who will act on Our behalf, to conduct Our business practices, during the performance of this contract, ethically and in accordance with the applicable legal precepts, not giving, offering, paying, promising to pay, or authorizing the payment of, directly or indirectly, any money or anything of value to any governmental authority, consultants, representatives, partners, or any third party, for the purpose of influencing any act or decision by the agent or the government or to secure any undue advantage. We expressly declare to have full knowledge and commit to the faithful observance of the legal provisions related to preventing and combating activities related to crimes of “laundering” or concealment of assets.
11. Terms and Termination
11.1 Term of Agreement. This Agreement commences on the date You (i) give acceptance to these terms by means of the Online Platform, or (ii) send us one counterpart of the Purchase Order signed, prevailing what happens earlier and will remain in force until all the subscriptions in this Agreement have expired or are terminated.
11.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the Virtual Account and/or in the Purchase Order, as applicable. Except as otherwise specified, the subscriptions will automatically renew for additional periods equal to the expiring subscription term or for one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
11.2.1 Subscriptions Renewal. We may, at any time, exercise its self-management and in view of free initiative and competition, review its Purchased Solutions pricing. Any price change will be previously communicated to You, in writing, at least 30 (thirty) days in advance, taking effect at the beginning of the next subscription period. You accept the changes by continuing to use the Purchased Solutions. You are entitled to reject the change by canceling the paid License before the end of the referred term, under the terms set out in clause 11.3 (termination). Unless expressly agreed by the Parties, special conditions differing from this, when renewing (automatic or not) the contracting of licenses for the Purchased Solutions, the unit price charged will be consistent with the current reality of the price table published on Our website.
11.2.2 Subscriptions under Special Conditions Renewal. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions, will be at Pipefy’s applicable list price in effect at the time of the applicable renewal. Any renewal in which functionalities, subscription volume or subscription length for any Purchased Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3. Termination by Us. We may suspend any use of the Services, remove any content or disable or terminate any Virtual Account or User Account that We reasonably believe, in good faith, to be in violation of the terms of this Agreement. We shall notify You prior to such suspension or deactivation in accordance with item 12.3 (Notices), unless We reasonably believe that: (a) it is prohibited from doing so under applicable law or due to legal process, such as lawsuits, orders, warrants and the like from a government administrative court or agency; or (b) it is necessary to postpone the notification to avoid imminent damage to Us or to third parties. In circumstances where the notification is postponed, We will provide notification if and when the impending restrictions listed in the previous sentence no longer apply.
11.3.1. Termination by both Parties. Any party may terminate this Agreement for cause in the following hypotheses (i) if not solved any proven material violation to this Agreement; (ii) if one of the parties becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; and (iii) in case of a civil or criminal conviction by a competent court, through prior written notice to the other party with at least 15 days of advance.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Us in accordance with Section 11.3, You will remain bound by the payments obligations in force and won’t be entitled to any refunds. If this Agreement is terminated by You in accordance with Section 11.3.1 (Termination by both Parties), We will refund You any prepaid fees covering the remainder of the term between the effective date of termination and all Purchase Orders. If this Agreement is terminated by Us in accordance with Section 11.3.1, You will pay any unpaid fees covering the remainder of the term of all Purchase Orders.
In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” and “General Provisions” will survive any termination or expiration of this Agreement.
12. General Provisions
12.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any document other than this Agreement or in the corresponding Purchase Order is a provision null or ineffective. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchase Order, (2) this Agreement, and (3) the Documentation.
12.2. Applicable Law and Jurisdiction. All disputes arising out of or relating to this Agreement shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in the State of Delaware unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have the authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the State of Delaware without reference to principles of conflicts of laws. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU HEREBY WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Following confirmation of an arbitration award in a state or federal court in the State of Delaware, a judgment arising therefrom may be executed in any court of competent jurisdiction. Notwithstanding the above, this section shall not prevent Us from seeking an injunction, or other equitable relief, in any court of competent jurisdiction.
12.3. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, with receipt signature by an authorized person (ii) on the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) on the first business day after sending by email to the electronic address made available for the organization Administrator in Your Virtual Account or if sent to [email protected] if the Notice regards Us. Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
12.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
12.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8 Agency. In order to avoid doubts, Pipefy Inc. makes it clear that it is the sole responsible before the counterparty in this Agreement so that all rights and obligations hereunder are borne only by Us and never by any representatives or distributors which may have intervened or enabled the signature of this Agreement.
Updated on October 23th/2020.