TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PARTENDER, INC. (“PARTENDER”). BY CLICKING ON THE "ACCEPT", “JOIN”, OR OTHER SIMILAR BUTTON, YOU OR THE ENTITY THAT YOU REPRESENT ("CUSTOMER" OR “YOU”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT CONSISTING OF ONE OR MORE ORDER FORMS (INCLUDING ONLINE ORDER FORMS OR INVOICES) REFERENCING THESE TERMS (“ORDER FORM”), THIS PARAGRAPH AND THESE TERMS (THE "AGREEMENT") WITH RESPECT TO THE SERVICES BEING PROVIDED BY PARTENDER. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CUSTOMER AND PARTENDER, THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY PARTENDER) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT SEPARATE SIGNED WRITTEN AGREEMENT. PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S INSTALLATION OR USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU WILL HAVE NO RIGHT TO USE THE SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "YOU" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Partender will provide Customer with access to the Services specified in each Order Form through the Internet during the applicable Service Term (as defined herein) (the “Services”). Partender may provide upgrades, patches, enhancements, modifications or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Partender shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Partender may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Partender shall use commercially reasonable efforts to give Customer thirty (30) days prior notice of any major changes unless such change is deemed urgent or critical by the company.
1.2 Partender will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Partender reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Partender.
1.3 Partender reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on its website, or by sending Customer a notice. Customer shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Service following such notification constitutes Customer’s acceptance of the terms and conditions of this Agreement as modified.
1.4 Partender does not endorse the consumption of alcohol. In addition, the Services should not be used by consumers to measure their consumption of alcohol. The Services should only be used in a business or commercial setting and is not intended for personal use. Do not drink and drive.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to the Services may require the Customer to install certain software or mobile device applications. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for its own internal business practices; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations and third party rights (including but not limited to any privacy laws, intellectual property, consumer and child protection, alcohol consumption, obscenity or defamation).
2.2 Customer will cooperate with Partender in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Partender may reasonably request. Customer will also cooperate with Partender in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Partender.
2.4 Subject to the Order Form, Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Partender, and Partender is permitted to disclose, including, without limitation, through display of Customer’s logo, that Customer is one of its customers to any third-party at its sole discretion (including without limitation in its publicity and marketing materials).
2.5 Customer hereby agrees to indemnify and hold harmless Partender 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 Partender has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Partender may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
2.6 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
3. INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, Partender alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Partender. Customer represents and warrants that Customer has the full right to allow it to provide Partender with the rights, data, materials, and information provided for herein. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the data resulting from its use of the Services for its internal analysis purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4. TERM; PAYMENT OF FEES
4.1 The Services and hourly support and consulting at $75 to $150 an hour are provided on a monthly subscription basis. Subject to an Order Form or some other written agreement by the parties, the term of Customer’s subscription shall commence upon Customer’s first access to or use of the Service, and unless earlier terminated as set forth herein, (x) shall continue for one year (“Initial Service Term”), and (y) following the Initial Service Term, shall automatically renew for additional successive terms of equal length (each, a “Renewal Service Term”) unless either party notifies the other party of such party’s intention not to renew in writing via Partender's cancelation form no later than thirty (30) days prior to the expiration of the Initial Service Term or then-current Renewal Service Term, as applicable. Subject to the Order Form, subscription fees for each Service Term (the “Subscription Fees”) and other fees must be paid in full on or before the first day of the applicable Service Term. For clarity, the total fees due may not include fees for any additional implementation hours, outlets, or seat licenses. Subject to an Order Form, all discounts provided are conditioned upon Customer agreeing to and maintaining the automatic renewal of the service terms as described. Customer shall pay all such Subscription Fees and other fees via the payment method set forth in the applicable Order Form, authorization form, or otherwise provided to Partender. Fees for Renewal Service Terms are subject to change, at Partender’s discretion, upon notice no later than forty-five (45) days’ prior to the end of the then current Service Term. All Fees are non-refundable and not subject to set-off.
4.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Partender's net income) unless Customer has provided Partender with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
5.1 Subject to earlier termination as provided below, this Agreement is in effect for the Service Term as specified in the Order Form.
5.2 Customer may terminate this Agreement upon ninety (90) days’ notice to Partender for Partender’s material breach that remains uncured at the end of such notice period. Partender may terminate or suspend the Services immediately upon notice to Customer, if Customer breaches any of the terms or conditions of this Agreement. Upon expiration or termination of this Agreement, Customer’s right to use the Services will immediately cease, provided that with respect to data downloaded from the Services in accordance with its functionality and the terms of this Agreement prior to termination, Customer may continue to use such data for its own internal business purposes, and for no other purpose.
5.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, intellectual property rights, warranty disclaimers, and limitations of liability.
6. WARRANTY DISCLAIMER
THE SERVICES AND ANY INFORMATION, DATA OR OTHER CONTENT OR MATERIALS PROVIDED BY PARTENDER IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. PARTENDER (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL PARTENDER (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF PARTENDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF PARTENDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO PARTENDER HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Partender are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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 Partender’s prior written consent. Furthermore, for clarity and without limiting Section 4, a change in ownership or management of Customer does not release Customer from or otherwise terminate any of Customer's obligations (including payment obligations) or amounts owed to Partender. If Customer is selling its business, Customer may contact Partender to request Partender's consent to the assignment of this Agreement to the purchaser. Partender may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that 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 Partender in any respect whatsoever. Customer agrees not to share Partender's pricing, order form terms, and/or any communications between the parties. 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; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Partender will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Partender is not associated with any brand of alcohol, food, or other product and uses any trademarks only in a descriptive manner. If you have questions about any of these terms, please contact us at: firstname.lastname@example.org