DEVELOPER.PRECISELY.COM SERVICES AGREEMENT
(06/2021)
IMPORTANT: DO NOT USE THIS SERVICE UNTIL YOU HAVE READ AND AGREED TO THIS SERVICES AGREEMENT. This is an agreement between you (“You” or “Client”) and Precisely Europe Software and Data Limited or its affiliate designated in the applicable subscription order (“PSI”). If You are accessing the Service on behalf of a company or organization, You certify that you are authorized to agree to this Agreement on behalf of such organization, and “You” as used in this Agreement will mean all authorized users within your organization. If You are located in a geography outside the United States, PSI will mean the affiliate or subsidiary of PSI operating in Your geography. By clicking next to “BUY NOW” prior to accessing the Service or by registering in the Client Portal, You are agreeing to the terms of this Services Agreement (the “Agreement”). IF YOU ARE NOT WILLING TO BE BOUND BY THE AGREEMENT, terminate Your access to the Service. The terms of this Agreement will only apply to the extent You and PSI have not executed a separate Services Agreement for the same Service.
1. Definitions. For the purposes of this Agreement, the following terms will have the corresponding definitions:
“Acceptable Use Policy” means the terms under which Client may access and use the Service;
“Allotment” means the number of Credits purchased by Client to be used to access Transactions during a given Billing Period;
“Available Hours of Operation” means twenty-four (24) hours per day, seven (7) days per week exclusive of Scheduled Downtime, described in Section 9(b), (PSI Responsibilities; Support), and downtime arising from causes beyond the reasonable direct control of PSI, such as the interruption or failure of telecommunications or digital transmission links, hostile network attacks or a Force Majeure event, as set out in Section 12;
“Available Hours of Support” means the hours set out in the Documentation during which time Client may obtain technical support for the Services;
“Billing Period” means a calendar month minus one day;
“Client Data” means any data, such as an address record, geographic data, telephone number, individual or business record or user query, or other material submitted by Client to the Service or provided by Client to PSI for the performance of the Service;
“Client Portal” means the part of the Service designated as providing Client with information regarding the Services purchased by Client, recording the number of Transactions performed and Credits used, and other pertinent information regarding Client access and use of the Service;
“Credit” means the value associated with a particular Transaction;
“Documentation” means the current technical and user documentation for the Service provided on the Client Portal;
“Plan” means the option selected by Client, which includes a Term of service and Allotment of Credits as set out in a Subscription Order;
“Privacy Statement” means the terms under which PSI will collect, use and store Client Data;
“Service” means the services offered by PSI under the terms of this Agreement, further described in the Client Portal;
“Subscription Order” means the document pursuant to which Client acquire a license to access the Service attached at Exhibit 1;
“Term” means the period of time within which Client may access and use the Service under the terms of this Agreement as set forth in the Plan selected by Client; and
“Transaction” means the submission and processing of each individual Client Data to the Service or the response to each individual Client Data or user query submitted to the Service.
2. Grant of Rights. PSI hereby grants Client a non-exclusive, non-transferable license to access and use the Service in accordance with the terms of this Agreement and the Acceptable Use Policy located at https://www.precisely.com/legal/licensing/apis-acceptable-use-policyl during the Term indicated in the applicable Plan selected by Client. PSI reserves all rights to the Service not expressly granted by this Agreement.
3. Term; Termination.
a) This Agreement is effective on the Commencement Date. The Subscription Order will be effect the Effective Date as set out in the Subscription Order, and will remain in effect for an initial Term as set forth in the Plan selected by Client. Upon expiration of the Plan Term, such Plan will automatically renew for successive Terms unless Client cancel the Plan in the Client Portal within thirty (30) days of receipt of notification of Term expiration.
b) Either party may terminate this Agreement and Client access to the Service by written notice if the other party commits a material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of such notice, or an additional period of time as agreed to by the parties.
c) Upon termination of this Agreement or expiration or termination of a Plan for any reason, Client will immediately cease use of the Service and each party will promptly return all Confidential Information of the other party.
d) Sections 4 (Fees, Payment Terms), 6 (Privacy Statement), 7 (Proprietary Rights; Suggestions), 8 (Non-infringement; Indemnification), 10 (Warranties; Disclaimers), 11 (Limitation of Liability), 15 (Applicable Law) and 16 (Verification) will survive termination of this Agreement indefinitely or to the extent set out therein.
4. Fees; Payment Terms.
a) Client will pay PSI the fees for the Allotment associated with the selected Plan. If Client fail to pay any fees due by the due date, PSI may suspend performance of the Services upon ten (10) days written notice to Client. PSI may change the monthly fees upon thirty (30) days notice to Client. Any increase in fees will not be effective until the commencement of the subsequent Term for the specific Plan for which the increase applies.
b) The fees do not include any amount for taxes. Client will pay all local sales, use, property, excise, privilege, ad valorem, Internet-related, and other taxes imposed on or with respect to this Agreement for the Services provided hereunder.
c) Allotments purchased may be used during the Billing Period. Unused Credits may not be carried over into subsequent Billing Periods. If Client exhaust an Allotment during the Billing Period, a new Allotment will be automatically billed to Client pro-rated to the end of the Billing Period. Client may access the Client Portal to view Credit usage and transaction history.
d) PSI reserves the right, at PSI’s discretion, to promptly terminate any free trial or require Client to purchase a paid Plan.
5. Client Responsibilities. Use of the Service is contingent on Client compliance with the Acceptable Use Policy. Failure to comply with the Acceptable Use Policy may result in immediate suspension or termination of Client access to the Service.
6. Data Privacy & Privacy Statement.
a) Should PSI processes any personal data on Client behalf when performing its obligations under this Agreement, the parties record their intention that Client shall be the data controller and PSI shall be a data processor and in any such case: (i) Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Client and the authorised users are located in order to carry out the Services and PSI’s other obligations under this Agreement; (ii) Client shall ensure that: (a) Client are entitled to transfer the relevant personal data to PSI so that PSI may lawfully use, process and transfer the personal data in accordance with this Agreement on Client behalf; and (b) the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (c) PSI shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by Client from time to time; and (d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
b) PSI will hold Client Data in confidence in accordance with the Privacy Statement located at https://www.precisely.com/legal/licensing/api-privacy-statement.
7. Proprietary Rights; Suggestions. Client will retain all right, title and interest in and to all Client Data. Client grant PSI a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Service.
8. Non-infringement; Indemnification.
a) PSI will indemnify, defend and hold Client, and Client officers, directors and employees harmless from all losses, damages, and reasonable costs and expenses to the extent they arise out of a claim by a third party that the Service, when used in accordance with the Documentation and in compliance with the terms of this Agreement, infringe or misappropriate any copyright, trademark, trade secret or patent registered or valid within the country the Service is authorized to be accessed. PSI will have control of the defense and will defend, at its own expense, any claim or litigation to which this indemnity relates, including the right to settle any such claim. Client must notify PSI promptly of any such claim and will provide reasonable cooperation to PSI, upon PSI’s request and at PSI’s cost, to defend such claim. PSI will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of an indemnified party not otherwise covered by this indemnification without indemnified party’s prior consent. Client may elect to participate in the defense of any claim with counsel of Client choosing at Client own expense.
b) If the Service is subject to a claim of infringement or misappropriation, or if PSI reasonably believes that the Service may be subject to such a claim, PSI reserves the right to: (i) offer a non-infringing replacement Service, at no cost to Client, which replacement will be functionally equivalent to such Service; (ii) procure, at no cost to Client, the right to continue to use such Service; or (iii) direct Client to terminate use of such Service. If PSI directs Client to terminate use of such Service, Client remedies, in addition to the indemnification set out herein, will be limited to a refund of any prepaid but unused fees for the Service.
c) PSI will not indemnify Client or be liable for claims arising from the use of the Service with data, hardware or software not provided by PSI, use of the Service in a manner not authorized by this Agreement or the Acceptable Use Policy, or Client use of the Service other than as permitted in this Agreement and the Documentation.
d) Client will indemnify, defend and hold PSI harmless against any claim arising from: (i) Client use of the Service in a manner not permitted under this Agreement; (ii) a third party claim that the Client Data or any other data, files or other materials provided by Client to PSI infringes any patent, copyright or trademark or misappropriates any trade secret; (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Service; or (iv) acts of gross negligence or willful misconduct. Client will have control of the defense and will defend at Client own expense, any claim or litigation to which this indemnity relates including the right to settle any such claim. PSI must notify Client promptly of any such claim and will provide reasonable cooperation to Client, upon Client request and at Client cost, to defend such claim. Client will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of an indemnified party not otherwise covered by this indemnification without indemnified party’s prior consent. PSI may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
9. PSI Responsibilities; Support.
a) PSI will use best efforts to make the Services available during the Available Hours of Operation in accordance with the Service Availability Statement located at https://www.precisely.com/legal/licensing/service-availability-statement. Support for the Service will be available during the Available Hours of Support. Support will consist of online chat, forum, and email technical support to assist Client with the use of the Service and will be provided in accordance with the Documentation.
b) The Service may be inaccessible or inoperable during certain periods to permit PSI to perform maintenance support services (“Scheduled Downtime”). PSI will use reasonable commercial efforts to minimize any disruption, inaccessibility or inoperability of the Services in connection with the Scheduled Downtime or other disruption of Service.
10. Warranties; Disclaimers.
a) PSI represents and warrants that it has the right to grant Client the rights granted hereunder
b) PSI represents and warrants to Client that the Service will materially conform to the Documentation. PSI does not warrant the operability or accuracy of any Client Data processed by PSI.
C) PSI DOES NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE OR THAT PSI WILL CORRECT ALL ERRORS IN THE SERVICE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND PSI AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, NONINFRINGEMENT, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
D) PSI WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED BY THE UNAUTHORIZED USE OF THE SERVICE OR ACTS OF ABUSE OR MISUSE OF THE SERVICE BY CLIENT. IN ADDITION, PSI WILL NOT BE LIABLE FOR ANY: (I) LOSS OR CORRUPTION OF CLIENT DATA USED IN THE SERVICE; OR (II) LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE SERVICE.
11. Limitation of Liability.
A) EXCEPT AS SET OUT IN 11(C) BELOW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY (I) LOSS OR DAMAGE TO PROFITS, SALES, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS; OR (II) BUSINESS INTERRUPTION OR LOST DATA; OR (III) PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES; EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
B) EXCEPT AS SET OUT IN 11(C) BELOW, EACH PARTY’S TOTAL LIABILITY, IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE RELATING TO THIS AGREEMENT, WILL BE LIMITED TO 110% OF THE AMOUNT OF LICENSE FEES PAYABLE BY CLIENT TO PSI DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF SUCH CLAIM.
C) NOTHING IN THIS AGREEMENT SHALL EXCLUDE, LIMIT OR RESTRICT EITHER PARTY’S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF A PARTY; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; (III) BREACH OF SECTION 8 (NON INFRINGEMENT, INDEMNIFICATION); (IV) CLIENT BREACH OF SECTION 5 (CLIENT RESPONSIBILITIES); OR (V) ANY OTHER CAUSE OF ACTION WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
12. Force Majeure. Except for Client payment obligations, neither party is responsible from any delay or failure to perform resulting from causes beyond its reasonable control.
13. Assignment. Client are not permitted to transfer or assign (by operation of law or otherwise) any of Client rights or obligations under this Agreement without the prior written consent of PSI, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without PSI’s written consent will be void and of no force and effect.
14. Publicity. Except as otherwise set forth in the Acceptable Use Policy, neither party will use the name of the other party in any publicity, press releases or similar activity without the consent of the other party.
15. Applicable Law. This Agreement shall be governed by the laws of England. The United Nations Convention on contracts for the international sale of goods shall not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction of the English courts.
16. Verification. Upon ten (10) days written notice, PSI or its designated third party may verify Client compliance with the terms of the Agreement at all locations from which Client access the Service. Such verification will take place no more than one (1) time per twelve (12) month period during normal business hours in a manner which minimizes disruption to Client work environment. PSI may use an independent third party under obligations of confidentiality to provide assistance. PSI will notify Client in writing if any such verification indicates that Client have used the Service in excess of the use authorized by this Agreement or the applicable Plan. Client agree to pay all associated fees directly to PSI for the charges that PSI specifies for such excess use.
17. General.
a) No waiver of or failure to act regarding any breach of this Agreement by either party or the failure of either party to insist on the exact performance of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing.
b) Any notice alleging a breach of this Agreement will be in writing and will be sent by overnight courier or delivered in person to the party’s address set forth in the Client Portal. Notices to PSI will include a copy to: Pitney Bowes Software Europe Limited, at 3rd Floor, The Pinnacle, 20 Tudor House, Reading, Berks RG1 1NH – United Kingdom. Attn: Legal Department with a cc: legal@precisely.com. Any other notice required to be provided by PSI under this Agreement may be sent by postal mail or e-mail to the individual designated by Client in the Client Portal, and to PSI at the e-mail addresses designated in the Client Portal.
c) If any provision of this Agreement or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
d) Each party will act as an independent contractor and employees of each party will not be considered to be employees of the other party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.
e) Except as provided in this Agreement that a third party may enforce or rely upon a term of this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement. Nothing in this Agreement shall affect any right or remedy of a third party that exists or is available other than as a result of the aforementioned Act.
18. Entire Agreement. This Agreement each Subscription Order, the Acceptable Use Policy, the Privacy Statement, and all appendices, exhibits, schedules and attachments thereto, including those incorporated by reference, constitutes the entire agreement between the parties with regard to Client access to and use of the Service, may not be modified or amended except by a writing signed by both parties except as otherwise indicated herein, and supersedes all proposals, purchase orders, understandings, representations, prior agreements or communications relating to Client use of the Service. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Client and any such terms will have no force or effect. Client certify that Client have not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement will not be construed against the party that prepared such document, but instead will be construed as if both parties prepared the Agreement.