PLANFUL PASS-THROUGH TERMS
These Planful, Inc. Pass-Through Terms consist of the sections 1-10. These Pass-Through Terms apply between Planful’s authorized reseller (“Reseller”) and its customer (“Client”) with respect to Application Services ordered by Client from such Reseller.
Planful is not a party to these Pass-Through Terms, which apply solely between Reseller and Client, and Client has no right to enforce or bring any claim against Planful with respect to these Planful Pass-Through Terms. However, Planful is a third-party beneficiary to these Planful Pass-Through Terms, and shall have the benefit of and the right to enforce these Planful Pass-Through Terms between Client and Reseller.
TERMS AND CONDITIONS
1.1 “Agreement” means this agreement, the exhibits, addenda, and all Order Forms.
1.2 “Application Services” means Planful’s software as a service solution listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Planful.
1.3 “Authorized User” means individual that Client authorizes to administer use of the Application Services.
1.4 “Confidential Information” means this Agreement, the Application Services, Planful data security program information, all confidential or proprietary 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. Confidential Information will not include 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, (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, and (v) Client Data.
1.5 “Client Data” means all electronic data stored on or transmitted to Application Services by Client.
1.8 “Documentation” means the on-line documentation Planful provides for use with the Application Services, which may be amended from time to time.
1.9 “Intellectual Property Rights” means any patent, copyright, or trademark under the laws of the United States or the country where the Client is headquartered.
1.10 “Order Form” means a document executed by both parties that details the subscriptions purchased by Client, including the subscription quantities, subscription start and end dates, associated fees, the support services, professional services, and other related details. If multiple Order Forms are executed related to this Agreement, each Order Form will each have a unique identification and each such Order Form will form a separate contract between the parties.
1.11 “Subscription Term” means the ordering period during which the Services are available to Client for use pursuant to the Order Form.
2. Provision of Services.
2.1 License Grant. Subject to the terms and conditions of this Agreement, Planful grants to Client during the Subscription Term the worldwide, non-exclusive, revocable, limited, non-transferable, royalty-free right for the Authorized Users to access and use the Application Services consistent with the Documentation and the Order Form solely for its internal business purposes or as otherwise indicated in the applicable Order Form. Planful will make the Services available to Client in accordance with service levels set forth at https://planful.app.box.com/v/Planful-Inc-SLA. Planful may update the Application Services during the Subscription Term, however, at no time will an update materially diminish the function of the Application Services.
2.2 Restrictions. The license granted in Section 2.1 is conditioned upon Client’s compliance with this Agreement. Client shall not directly or indirectly: (a) permit any third party to access the Application Services except as permitted herein or in an Order Form, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Application Services for commercial time sharing, outsourcing or otherwise commercially exploit the Application Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Application Services, other than on Client’s own intranets; (f) access the Application Services n order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services; and
(g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services or Documentation.
2.3 Access and License to Client Data. Client grants to Planful a non-exclusive, worldwide, royalty-free, fully paid-up right and license to copy, access, transmit and otherwise process the Client Data to provide the Application Services to Client as set forth in this Agreement. Planful will not: (a) access Client Data except (i) to provide the Application Services and the associated support services; (ii) to prevent or address service, security or technical problems with the Application Services; (iii) to audit Client’s use of the Application Services and confirm Client’s compliance with the Agreement; (iv) as compelled by law; or (v) as Client expressly permits in writing. Planful may aggregate de-identified information regarding Client’s usage and configuration metrics of Application Services (which in no event shall include Client Data) with that of other Planful Clients and use such aggregated Client services data as part of the Application Services.
2.4 Client Responsibilities. Client shall be responsible for Authorized Users’ compliance with this Agreement and for Client Data. Client shall not (i) use the Application Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Application Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, (iii) interfere with or disrupt the integrity or performance of the Application Services or third party data contained therein, or (iv) attempt to gain unauthorized access to the Application Services or Planful’s related systems or networks. Client shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services, and notify Planful promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Application Services and all charges related thereto.
2.5 Professional Services. If Client purchased professional services, Planful will provide Client with professional services in accordance with the Professional Services Addendum attached hereto as Exhibit A.
3. Intellectual Property Ownership. As between Planful and Client, Client owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Client Data. As between Planful and Client, Planful owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Application Services and Documentation. The foregoing also includes any and all Application Services system performance data and machine learning based upon metadata (and not Client Data), including machine learning algorithms, and the results and output of such machine learning. Planful retains all Intellectual Property Rights arising from any support services. No jointly owned intellectual property is created under or in connection with this Agreement. Planful shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Application Services any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Application Services.
4. Payment Terms
4.1 Fees; Payment. Client shall pay Planful, directly or through the Reseller with which Client contracted, in accordance with the amounts and dates specified on the Order Form. All Fees will be invoiced in advance in accordance with the Order Form. All invoices that are more than 30 days overdue, and all credit accounts that are delinquent, shall be assessed a 1.5% late payment charge (or if this exceeds the legally permitted maximum, the highest legal rate under applicable law) for each month the invoice is not paid or the account is delinquent. Client will reimburse Planful for all reasonable costs (including reasonable attorneys’ fees) incurred by Planful in connection with collecting any overdue amounts. Except as otherwise specified in this Agreement payment obligations are non- cancelable and fees paid are non-refundable, and the subscriptions purchased cannot be decreased or exchanged for alternative subscriptions. If any amount owed by Client is thirty (30) days or more overdue, Planful may, with seven (7) days’ prior notice to Client, without limiting Planful’s other rights and remedies, suspend Application Services and access to Data until such amounts are paid in full.
4.2 Taxes. All fees are exclusive of all sales and use taxes, value-added taxes, excise taxes, levies, or duties which may be imposed by applicable national or federal, state/provincial or local municipalities relating to Client’s purchase of subscriptions or use of the Application Services (the “Taxes”), and Client will be responsible for payment of all such Taxes. Unless Client provides Planful with evidence of its sales tax exemption, Planful will invoice Client, and Client shall pay Planful all relevant taxes payable related to Client’s purchases, excluding taxes based on Planful’s net income. Client will pay all fees free and clear of, and without reduction for, any such Taxes, including withholding taxes imposed by any country. Client will provide receipts issued by the appropriate taxing authority to establish that such Taxes have been paid.
4.3 Purchases Through Reseller. If Client purchases access to the Application Services from a reseller, and notwithstanding anything set forth otherwise in this Agreement: (i) in addition to Client’s compliance with this Agreement, Client’s right to access and use the Application Services is subject to the terms and conditions of Clien’ts written agreement with the reseller (the “Reseller Agreement”), including Client’s obligation to timely pay Fees to the reseller; (ii) Client will execute any Order Forms and Insertion Order Forms with the reseller and not Planful; and (iii) the terms and conditions of Section 4.1 (Fees;Payment) are not applicable between Planful and Client and instead will be set forth in the Reseller Agreement. Any refund, payments and credits which Planful may or must provide to Client in accordance with the terms of this Agreement, including, without limitation, the Service Level Agreement shall be provided by Planful to reseller and Client acknowledges that it must seek such refunds, payments and credits from reseller only. Furthermore, Client’s right to terminate or cancel its subscription to the Application Services is solely as set forth in the Reseller Agreement. In the event that the reseller ceases at any time to be an authorized Planful reseller, including for a failure to pay for Application Services, Client’s continued use of the Application Services is conditioned upon Client executing a written agreement for the Application Services directly with Planful. Resellers are not authorized to modify these Terms of Service or make any promises or commitments on Planful’s behalf, and Planful is not bound by any obligations to Client other than as set forth in these Terms of Service.
5. Agreement Term; Subscription Term; Termination.
5.1 Term; Termination. This Agreement begins on the Effective Date and, unless earlier terminated as set forth below or otherwise in this Agreement, will continue while there is an active Subscription Term. If this Agreement has not been terminated early in accordance with this section, each subscription described in an Order Form will continue for its Subscription Term. Unless otherwise specified in an Order Form, each subscription will automatically renew after its initial term for successive one (1) year terms, unless either party provides the other party with written notice of termination of such subscription no less than ninety (90) days before the expiration of the applicable Subscription Term. Notwithstanding the foregoing, any promotional or one-time priced subscription will not be subject to auto-renewal. Either party may terminate this Agreement (or any relevant Order Form) for cause (i) upon the other party’s material breach that remains uncured for thirty (30) days following written notice, except that in the event of a breach of Sections 2.2 or 3, for which the cure period is five (5) days following written notice; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
5.2 Effects of Termination; Survival. Upon expiration or termination of this Agreement: (a) all subscriptions, licenses, right to use or access the Application Services will cease; (b) at Client’s written request made within 28 days after such termination or expiration, Planful will either return Client Data to Client or destroy or permanently erase Client Data; (c) for Planful’s material breach of the Agreement, Planful will refund to Client amounts owed to Client in respect of unused Application Services as of the effective date of the termination; and (d) Sections 1, 2.3, 3, 4, 5.2, 6.2, and 7 through 10 will survive.
6. Representations and Warranties.
6.1 Limited Warranty by Planful.
(a) Conformity with Documentation. Planful warrants that Application Services will perform substantially in accordance with the applicable Documentation when used in accordance with this Agreement for the Subscription Term. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Application Services has resulted from installation, deployment, use, maintenance or support not in accordance with this Agreement or the Documentation, modification by Client, an Authorized User, or a third party not authorized by Planful, force majeure, or any breach of this Agreement by Client or an Authorized User. In the event of an Application Services warranty claim, Client’s sole and exclusive remedy and Planful’s entire obligation and liability shall be, at Planful’s sole option, to either (i) provide a correction, update or upgrade of the Application Services, (ii) correct or replace the Application Services, or (iii) refund Client, directly or through the Reseller with which Client contracted, a pro-rated amount of the applicable Fees pre-paid by Client covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination and terminate this Agreement. All warranty claims must be made to Planful in writing within such warranty period. (b) Malicious Code. Planful warrants that Planful tests Application Services for all known software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”). To Planful’s knowledge, Application Services do not contain Malicious Code.
6.2 WARRANTY DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, PLANFUL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE DATA IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
7.1 Intellectual Property Indemnification by Planful. Planful will defend Client against any claim, demand, suit or proceeding
(“Claim”) made or brought against Client by a third party alleging that Client’s use of the Application Services in accordance with this Agreement infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Client from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Planful under a settlement of, such Claim made in accordance with the terms of Section 7.4 (Indemnity Process). The foregoing obligations do not apply to any Claim based on or arising from: (A) any modification of the Application Services not done by Planful or strictly in accordance with Planful’s written instructions, if the Claim would not have arisen but for such modification; (B) any failure by Client to implement updates or upgrades to the Application Services as supplied by Planful, if the Claim would not have arisen had such update or upgrade been implemented; (C) the combination, operation, or use of the Services with non-Planful programs, data or documentation not recommended by the Documentation or Planful in writing, if such infringement would have been avoided by the use of the Application Services without such combination, operation or use; (D) any use of the Application Services that is not expressly permitted under this Agreement or the Documentation, (E) Client’s continued use of infringing Application Services after Planful, at no additional charge, supplies or offers to supply modified or replacement non-infringing Application Services as contemplated under Section 7.2 below; or (F) the Client Data.
7.2 Intellectual Property Infringement Remedy. If Planful receives written notice from Client of an infringement or misappropriation Claim arising directly out of the Application Services (and not arising subject to the exceptions stated in Section 7.1), Planful may in its discretion and at no cost to Client either (i) modify the Services so that they no longer infringe or misappropriate; (ii) obtain a license for Client’s continued use of the Application Services in accordance with this Agreement; or (iii) if (i) and (ii) are not practicable despite Planful’s reasonable efforts, then Planful may terminate Client’s subscription to the infringing Application Services and refund Client a pro-rated amount of any prepaid fees covering the remainder of the Subscription Term of the terminated subscription. This Section 7 states Planful’s sole liability, and Client’s exclusive remedy, for any infringement or misappropriation of third-party intellectual property rights by the Application Services.
7.3 Intellectual Property Indemnification by Client. Client will defend Planful against any Claim made or brought against Planful by a third party alleging that Client Data infringes on a third party’s Intellectual Property Rights, and will indemnify and hold harmless Planful from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Client under a settlement of such Claim made in accordance with the terms of Section 7.4 (Indemnity Process).
7.4 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the Claim to the indemnifying party; (b) giving the indemnifying party, at the indemnifying party’s expense, sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability for the Claim without acknowledgment by the indemnified party of fault or wrongdoing); (c) providing to the indemnifying party all available information in its possession and reasonable assistance in connection with the Claim, at the indemnifying party’s request; and (d) not compromising or settling such Claim. The indemnified party may otherwise participate in the defense of the Claim, at the indemnified party’s sole expense (not subject to reimbursement).
8. Limitation of Liability.
8.1. LIMITATION OF DAMAGES. NEITHER PARTY WILL BE RESPONSIBLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. LIMITATION OF AMOUNT. EXCEPT FOR EACH PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS AND DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PLANFUL NOR CLIENT SHALL BE LIABLE FOR AGGREGATE LIABILITY THAT EXCEEDS THE SUMS ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM(S) OR SOW(S) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT FROM WHICH THE CLAIM AROSE).
The limitations of liability set forth in this Section 8 do not apply to the extent prohibited by law. No Claim against Planful may be brought more than one year after the events or facts giving rise to such claim have arisen. The limitations of liability and exclusions of damages in this Section 8 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.
9. Information Protection.
9.1 Confidentiality. Each party acknowledges that in connection with this Agreement it may obtain Confidential Information of the other party. The receiving party (“Recipient”) shall not access or use, or permit the access or use of, the Confidential Information of the disclosing party (“Discloser”) other than as necessary to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees, officers, directors, consultants, contractors, agents or advisors (“Representatives”) who have a need to know for purposes of the Recipients’ exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential consistent with this Agreement. Recipient acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure and will not use less than a reasonable degree of care. If the Recipient or any of its Representatives is required pursuant to a judicial or other governmental order or proceeding to disclose any Confidential Information of Discloser, then, to the extent permitted by applicable law, the Recipient shall promptly notify the Discloser of such requirement prior to disclosure so that the Discloser can seek a protective order or other remedy. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
10.1 Notices. All notices given under this Agreement shall be in writing and shall be deemed given upon receipt. All notices shall be sent to the parties at their respective address on the Order Form, or to such email address or address as subsequently modified by written notice given in accordance with this section. For Planful, all legal notices must be addressed to firstname.lastname@example.org.
10.2 Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to an entity that acquires all or substantially all of the assets or equity of the assigning party; provided, further that the party receiving the assignment assumes all of the rights of the assigning party. Any attempted assignment in violation of the foregoing will be null and void.
10.3 Governing Law; Venue. If Client is domiciled in a country North America or South America, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of California, USA, without regard to conflicts of law provisions. If Client is domiciled in a country in Europe, Middle East, or Africa, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of law provisions. If Client is domiciled in a country in India subcontinent, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws India, without regard to conflict of law provisions. If Client is domiciled in a country in Asia Pacific or Oceania, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of Australia, without regard to conflict of law provisions. Neither the U.N. Convention on Contracts for the International Sale of Goods nor UCITA will apply. This Section shall not preclude parties from seeking provisional/equitable remedies in aid of arbitration from a court of appropriate jurisdiction.
10.4 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Application Services. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
10.5 Export Compliance. The Application Services may be subject to U.S. and foreign export control laws. Client agrees to comply with all laws and regulations of the United States and other countries where the Application Services are used by Client to ensure that they are not exported, directly or indirectly, in violation of such laws.
10.6 Force Majeure. Neither party shall be liable for its inadequate performance under this Agreement caused by any condition beyond the reasonable control of the affected party, including but not limited to acts of God, acts of government, pandemics, third party criminal acts, acts of terror or civil unrest. The affected party shall use its best efforts to mitigate, avoid or remove such cause or non- performance and to restore performance to normal level as quickly as possible whenever such causes are removed.
10.7 Insurance. Planful shall maintain, at its expense, during the Subscription Term workers’ compensation insurance as required by applicable law, and commercial general liability insurance, errors and omissions liability insurance, cyber security insurance, and umbrella liability insurance from financially sound insurance companies having coverages and limits of liability that are commercially reasonable. Upon request, Planful will provide Client with proof of such insurance.
10.8 Waiver; Amendment; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is determined to be unenforceable by any tribunal, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. Neither party will be liable for failure to perform due to causes beyond its reasonable control.
10.8 Entire Agreement. This Agreement and all related Order Forms and Addenda form the entire agreement between Client and Planful regarding the subject matter hereof. Any conflict between this Master Subscription Agreement, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form in date order with the most recent Order Form being of highest precedence; (b) any SOW; and (c) this Master Subscription Agreement. This entire agreement supersedes all prior or contemporaneous negotiations or agreements, both oral and written, between the parties regarding its subject matter. Any preprinted terms on any Client purchase order will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes.