Terms of Service Agreement
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” YOU AGREE TO THESE TERMS AND CONDITIONS.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND THAT YOU HAVE BEEN AUTHORIZED TO DO SO. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF A CORPORATION, LLC, PARTNERSHIP, SOLE PROPRIETORSHIP, OR OTHER BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
DEFINITIONS. The following capitalized terms have the following meanings whenever used in this Agreement.
“Authorized Participant Count” means the number of Participants that you authorized under the Order.
“Order” means an order for access to the Portal.
“Participant” means any individual who uses the Portal on your behalf or through your account or passwords, whether authorized or not.
“Portal” means Pier 2’s website including the computer hardware, software, and other tangible equipment and intangible computer code necessary to deploy and serve the SaaS Services.
“SaaS Services” means the service plans and features selected by Host and specified in the Order and accessible through the Portal. SaaS Services include any updates or upgrades to such services that may be generally released by Pier 2 to all hosts, from time to time.
“Term” is defined in Section 11.1 below.
“Your Data” means data in electronic form input or collected through the Portal by or from you, including without limitation by your Participants.
Use of the Portal. During the Term, you may access and use the Portal pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
Portal Revisions. Pier 2 may revise Portal features and functions at any time, including without limitation by removing such features and functions. If any such revision to the Portal materially reduces features or functionality provided pursuant to an Order, you may, within 30 days of notice of the revision, terminate such Order, without cause, or, terminate this Agreement without cause, if such Order is the only one outstanding.
Subscriptions. Unless otherwise specified herein or in the Order, (i) SaaS Services are purchased as subscriptions and may be accessed by no more than the Authorized Participant Count, (ii) additional subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional subscriptions are added, and (iii) the added subscriptions will terminate on the same date as the pre-existing subscriptions. Any additional subscriptions will add to the Authorized Participant Count and will be governed by the terms and conditions of this Agreement.
Subscription Fees. You shall pay Pier 2 the fee set forth in each Order (the “Subscription Fee”) for each Term. Pier 2’s invoices are due within 30 days of issuance. For late payment, you shall pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law. Pier 2 will not be required to refund the Subscription Fee under any circumstances.
Taxes. Amounts due under this Agreement are payable to Pier 2 without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Host shall separately pay Pier 2 the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Pier 2’s net income.
YOUR DATA & PRIVACY.
Use of Your Data. Unless it receives your prior written consent, Pier 2: (a) shall not access, process, or otherwise use Your Data other than as necessary to facilitate the Portal; and (b) shall not intentionally grant any third-party access to Your Data, including without limitation Pier 2’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Pier 2 may disclose Your Data as required by applicable law or by proper legal or governmental authority. Pier 2 shall give you prompt notice of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your expense. As between the parties, you retain ownership of Your Data.
Risk of Exposure. You understand and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Portal, you assume such risks. Pier 2 offers no representation, warranty, or guarantee that Your Data will not be exposed or disclosed through errors or the actions of third parties.
Data Accuracy. Pier 2 will have no responsibility or liability for the accuracy of data uploaded to the Portal by you, including without limitation Your Data and any other data uploaded by Participants.
Data Deletion. Pier 2 may permanently erase Your Data if your account is delinquent, suspended, or terminated for 30 days or more.
Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Pier 2 may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Your Data with the following removed: your personally identifiable information and the names and addresses and any of your Participants.)
YOUR RESPONSIBILITIES & RESTRICTIONS.
Use Restrictions. You shall not nor shall you allow Participants to:
- do anything illegal, facilitate any illegal activity, or promote violence;
- engage in any activity that is harmful, obscene, or indecent, as such would be understood in the context of business usage, including displays of nudity, violence, pornography, sexually explicit material, or criminal activity;
- facilitate or support human trafficking;
- engage in any activity that supports or facilitates terrorism or terrorist organization;
- engage in any activity that is fraudulent, false, or misleading;
- engage in any activity that is defamatory, harassing, threatening, or abusive;
- misrepresent your identity or affiliation with any entity or organization, or impersonate any other person;
- harvest, collect, or gather user data without consent;
- violate or infringe any intellectual property or proprietary rights of others, including copyright;
- violate the privacy of others or distribute confidential or personal information of others;
- post, stream, or transmit any content, including live video, that violates any of the restrictions above;
- engage in any activity that is harmful or disruptive to the Portal or attempts to circumvent restrictions on access, usage, or security of the Portal, including transmitting viruses, malware, or other malicious or destructive code or using tools that mask IP address location or to otherwise circumvent restrictions on use due to regulations or account closures;
- share non-public Portal features or content with any third party;
- access the Portal in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Portal, or to copy any ideas, features, functions or graphics of the Portal; or
- engage in web scraping or data scraping on or related to the Portal, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
In the event that it suspects any breach of the requirements of this Section, including without limitation by Participants, Pier 2 may suspend your access to the Portal without advanced notice, in addition to such other remedies as Pier 2 may have. This Agreement does not require that Pier 2 take any action against you or any Participant or other third party for violating this Section 5.1 or this Agreement, but Pier 2 is free to take any such action it sees fit.
Unauthorized Access. You shall take reasonable steps to prevent unauthorized access to the Portal, including without limitation by protecting your passwords and other log-in information. You shall notify Pier 2 immediately of any known or suspected unauthorized use of the Portal or breach of its security and shall use best efforts to stop said breach.
Compliance with Laws. In your use of the Portal, you shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Your Data.
Participants & Portal Access. You are responsible and liable for: (a) Participants’ use of the Portal, including without limitation unauthorized Participant conduct and any Participant conduct that would violate the requirements of this Agreement applicable to you; and (b) any use of the Portal through your account, whether authorized or unauthorized.
IP & FEEDBACK.
IP Rights to the Portal. Pier 2 retains all right, title, and interest in and to the Portal, including without limitation all software used to provide the Portal and all graphics, user interfaces, logos, and trademarks reproduced through the Portal. This Agreement does not grant you any intellectual property license or rights in or to the Portal or any of its components. You understand that the Portal and its components are protected by copyright and other laws.
Feedback. Pier 2 has not agreed to and does not agree to treat as confidential any Feedback (as defined below) you or Participants provide to Pier 2, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Pier 2’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you or the Participant in question. Notwithstanding the provisions of the Section entitled “Confidential Information” below, Feedback will not be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Pier 2’s products or services.)
CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Pier 2 discloses to you: (a) any document Pier 2 marks “Confidential”; (b) any information Pier 2 orally designates as “Confidential” at the time of disclosure; and (c) any other nonpublic, sensitive information you should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in your possession at the time of disclosure; (ii) is independently developed by your without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of your improper action or inaction; or (iv) is approved for release in writing by you. You are on notice that the Confidential Information may include Pier 2’s valuable trade secrets.
Nondisclosure. You: (a) shall not disclose Confidential Information to any of your employees or contractors of unless such person needs access in order to facilitate your performance under this Agreement and such person executes a nondisclosure agreement with you with terms no less restrictive than those of this Section; and (b) shall not disclose Confidential Information to any other third party without Pier 2’s prior written consent. Without limiting the generality of the foregoing, you shall protect Confidential Information with the same degree of care you use to protect your own confidential information of similar nature and importance, but with no less than reasonable care. You shall promptly notify Pier 2 of any misuse or misappropriation of Confidential Information that comes to your attention. Notwithstanding the foregoing, you may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. You shall give Pier 2 prompt notice of any such legal or governmental demand and reasonably cooperate with Pier 2 in any effort to seek a protective order or otherwise to contest such required disclosure, at Pier 2’s expense.
Injunction. You agree that breach of this Section would cause Pier 2 irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Pier 2 will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Termination & Return. With respect to each item of Confidential Information, the obligations of nondisclosure will terminate five years after the date of disclosure; provided that such obligations related to Confidential Information constituting Pier 2’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, you shall destroy all copies of Confidential Information to Pier 2 and certify, in writing, the destruction thereof.
Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Pier 2 will retain all right, title, and interest in and to all Confidential Information.
REPRESENTATIONS & WARRANTIES.
From Pier 2. Pier 2 represents and warrants that it is the owner of the Portal and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Portal set forth in this Agreement without the further consent of any third party. Pier 2’s representations and warranties in the preceding sentence do not apply to use of the Portal in combination with hardware or software not provided by Pier 2. In the event of a breach of the warranty in this Section, Pier 2, at its own expense, shall promptly take the following actions: (a) secure for you the right to continue using the Portal; (b) replace or modify the Portal to make it non-infringing; or (c) terminate the infringing features of the Portal and refund to you any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with your right to terminate for breach where applicable, the preceding sentence states Pier 2’s sole obligation and liability, and your sole remedy, for breach of the warranty in this Section and for potential or actual intellectual property infringement by the Portal.
From You. You represent and warrant that: (a) you have the full right and authority to enter into, execute, and perform your obligations under this Agreement and that no pending or threatened claim or litigation known to you would have a material adverse impact on your ability to perform as required by this Agreement; (b) you have accurately identified yourself and you have not provided any inaccurate information about yourself to or through the Portal; and (c) you are a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Warranty Disclaimers. Except to the extent set forth in the Section above, YOU ACCEPT THE PORTAL “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PIER 2 HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU OR PARTICIPANTS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) PIER 2 DOES NOT REPRESENT OR WARRANT THAT THE PORTAL WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) PIER 2 DOES NOT REPRESENT OR WARRANT THAT THE PORTAL IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR DATA WILL REMAIN PRIVATE OR SECURE.
INDEMNIFICATION. You shall defend, indemnify, and hold harmless Pier 2 and the Pier 2 Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to your alleged or actual use of, misuse of, or failure to use the Portal, including without limitation: (a) claims by Participants or by your employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Your Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Portal through your account, including without limitation by Your Data; and (d) claims that use of the Portal through your account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Pier 2’s negligence. Your obligations set forth in this Section include retention and payment of attorneys and payment of court costs, as well as settlement at your expense and payment of judgments. Pier 2 will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Pier 2 Associates” are Pier 2’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
LIMITATION OF LIABILITY.
Dollar Cap. PIER 2’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU TO PIER 2 FOR THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE ACTION.
Excluded Damages. Except with regard to breaches of the obligations of Confidential Information, IN NO EVENT WILL PIER 2 BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PIER 2 IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section, Pier 2’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Pier 2’s liability limits and other rights set forth in this Section apply likewise to Pier 2’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
Term & Termination.
Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order. Thereafter, the Term will renew for successive one year periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
Effects of Termination. Upon termination of this Agreement, you shall cease all use of the Portal and delete, destroy, or return all copies of the Documentation in your possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation you have to pay fees incurred before termination; (b) provisions pertaining to IP & Feedback), Confidential Information, Warranty Disclaimers, Indemnification, and Limitation of Liability; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics or pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Assignment & Successors. You may not assign this Agreement or any of its rights or obligations hereunder without Pier 2’s express written consent. Except to the extent forbidden in this Section, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Texas, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. This Section 12.6 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
Technology Export. You shall not permit any third party including Participants to access or use the Portal in violation of any U.S. law or regulation. Without limiting the generality of the foregoing, you shall not permit any third party or Participants to access or use the Portal in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.