Last updated: 15 September 2018
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH PAID, FREE TRIAL OR COLLABORATION SUBSCRIPTIONS TO THE SERVICES.
These Terms of Service (“Terms”) form an agreement between You (“You”, “Your” or related capitalized terms), and any organization You represent, and PIQNIC Limited. (“PIQNIC”, “we”, “us” or “our,” including any person or entity affiliated with PIQNIC (each such person or entity, “PIQNIC Party”). By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to PIQNIC that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
About PIQNIC
PIQNIC is a cloud hosted information management and team collaboration platform which allows You to upload, store, search, share and collaborate online with other users of the Service with respect to data, documents, files, materials, text, audio, video, images and other content (“Content,” as further defined below) . The Service is offered in both paid and free versions (aka a “Standard ” and “Collaborate with non PIQNIC users” and together, “Service Plan(s)”). A description of each of the account options, including features, capabilities and limitations is included in the Website under the “Pricing” tab. You may also download the Software (i.e., the Service’s desktop client (coming soon) that allows You to synchronize Your files and collaborate in the cloud from Your desktop device, and our mobile client (coming soon) which allows You to use the Service effectively using a mobile device).
Using PIQNIC Services
When subscribing to use the Service, You must: (a) provide true, accurate, current and complete information about Yourself as requested (such information being the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Registration may be done independently via the Website or by contacting our Sales Team and completing a PIQNIC service form (“Form”) executed or approved by You with respect to Your subscription to the Service, which Form may detail, among other things, the number of users authorized to use the Service under your subscription to the Service and the Service Plan applicable to Your subscription. Once You register to the Service You will automatically be granted a PIQNIC organization (“Organization”). During the Subscription Term (if any) You can invite other users (“Users”) to Your Organization to collaborate with You using the Service.
During the Subscription Term and subject to compliance by You and other Users in Your Organization with these Terms, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable associated services, for Your internal business purposes. Without limiting the foregoing, Your right to access and use the PIQNIC Application Programming Interface developed and enabled by PIQNIC (“API”) is also subject to the restrictions and policies implemented by the PIQNIC from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by PIQNIC, including the protocols accepted by PIQNIC, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You or Your Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, Content (which includes “Personal Data,” as further defined below) transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by PIQNIC. We assume no responsibility for the reliability or performance of any connections as described in this section. Only you and Your authorized Users may use Your account. Be sure to keep Your account credentials confidential, and to contact us right away if You suspect misuse of Your account or Your Content or if You suspect any security breach in the Services. You are responsible for all activities that take place within Your account. PIQNIC will not be liable for any loss or damage arising from any unauthorized use of Your account.
If a third party such as an employer or school gave You Your account, that party has rights to Your account and may (i) manage Your account, reset Your password, or suspend or cancel Your account; (ii) view Your account’s usage and profile data, including how and when Your account is used; and (iii) read or store Content in Your account.
PIQNIC provides the following service functionalities as a part of the Service. PIQNIC may add other functionalities and/or modify some of the functionalities at its own discretion and without further notice, however, if we make any changes in the functionality of the Service that we are material, then we will notify you by posting an announcement on the Sites and/or via the Service or by sending you an email.
Authorized Users – Authorized Users can be involved in multiple Subscriptions of the Service, either as an Admin, a Member or a Guest (defined below). When you sign up for an Organization Account for your Organization you may designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized Users. You as an Admin must ensure that each Authorized User is aware of these Terms and its provisions, prior to using the Service. Without limiting the foregoing sentence, you shall procure each Authorized User’s compliance with the restrictions and obligations in these Terms and shall be primarily responsible and liable for the acts and omissions of each Authorized User.
Organization Administrator – If you are the first Authorized User in your Organization, you will be automatically granted Admin rights and we will process your Personal Data as set forth in our Privacy Policy. An Admin can assign or remove Admin rights of other Authorized users at any time and remains primarily responsible for dealing with their claims and requests regarding Personal Data. If the Organization will ask us to remove your Admin rights, we will follow the Organization request. You agree to take any actions reasonably requested by us or the Organization to transfer the Admin role to another Authorized User as per the Organization request. The Admin may perform any tasks which a Member and/or a Guest can perform. The Admin may use the Application Program Interface (“API”) only during the respective Subscription Period only in connection with the use of the Service. PIQNIC will provide the Admin with audit tools to manage the Organization Account and view what activities were performed by which Authorized Users.
Member – If you are a Member, we will process your Personal Data as set forth in our Privacy Policy. You will be allowed access PIQNIC as per the access right and permissions provided by the Administrator. You will be granted access and allowed to perform the following activities in as configured by the Administrator and according to the Service’s functionality:
Guest – If you are a Guest, we will process your Personal Data as set forth in our Privacy Policy. You will be allowed, free, fair use access to, and be allowed to perform the following activities in the Collaboration session (File shares and tasks) you have access to, as configured by the Project or Task Owner in the settings of such tasks and according to the Service’s functionality:
Levels of Service
PIQNIC understands how critical the Service is to many of its customers, and makes significant efforts to keep the Service up and running at all times. You may view the Service uptime information page in Your administration module to learn more about current and historical system status. In addition, PIQNIC will provide guaranteed levels of service, with rights and remedies as described in the PIQNIC Service Level Agreement (“SLA”). The SLA is subject to change at any time without notice, although PIQNIC will make reasonable efforts to provide advance notice of such changes on the Website.
Acceptable Use of PIQNIC Services
Access to and use of the Services is governed under the following Terms. We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Services as part of our efforts to protect the Services, protect You and other customers, and/or stop users of the Service from breaching these Terms.
In addition, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Service available to any third party, other than authorized Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) manipulate the Service to assign to Users in your organization free external user roles to avoid payment for PIQNIC by such users; (c) use the Service to process data on behalf of any third party, except where such third party is a subscriber to the Service and only as expressly authorized by such subscriber to the Service; (d) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (e) falsely imply any sponsorship or association with PIQNIC, (f) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (g) use the Service to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (h) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (i) use the Service in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (j) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the PIQNIC Services; (k) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (l) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by PIQNIC; (m) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (n) attempt to use, or use the Service in violation of these Terms.
You are responsible for compliance with the provisions of these Terms by Users and for any and all activities that occur under Your account, as well as for all Content. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Content is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Users. You also maintain all responsibility for determining whether the PIQNIC Services or the information generated thereby is accurate or sufficient for Your purposes. Access to and use of the Service is restricted to the specified number of individual Users permitted under Your subscription to the Service. You agree and acknowledge that each User will be identified by a unique username and password (“Login”) and that a User may only be used by one (1) individual. You will not share a User Login among multiple individuals. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your account.
We reserve the right to suspend your Service account, in Our reasonable discretion, in case of a violation of these Terms, and also to temporarily suspend Your access to and use of a Service: (a) during planned downtime for upgrades and maintenance to the Service (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your account or use of the Service by You and other Users. In either circumstance, we will make commercially reasonably efforts to notify You in advance if access to the Services becomes unavailable.
Confidential Information
In these Terms, “Confidential Information” means all information disclosed by You to the relevant PIQNIC Party or by the PIQNIC Party to You which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to the PIQNIC Party’s security policies and procedures. For purposes of these Terms, these Terms as well as Content shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Subject to the express permissions of these Terms, each party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Content and such agreement shall have no further force or effect with respect to Content.
Data Privacy and Security
PIQNIC will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Content. These safeguards include encryption of Content in transmission (using TLS or similar technologies), except for Other Services (as defined herein) that may be connected to the Service by third parties that do not support encryption, which You may link to through the Service at Your election. Our compliance with the provisions of this Section shall be deemed compliance with Our obligations to protect Content, including specifically Personal Data.
You are solely responsible for Your Content, which we define as any Content You upload, store, process and/or share using the Service or any Content that is shared with You. Such Content may include “Personal Data,” which is defined herein as any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity. You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to You by any person claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, Your use of additional encryption technology to protect the Content from unauthorized access.
In subscribing to and/or using the Service You represent and warrant that: (a) You have all the rights in the Content contained in Your account; and (b) the storage, use or transmission of the Content doesn’t violate any law or these Terms. Except for material that we license to You, we don’t claim ownership of any Content that is transmitted, stored, or processed in Your account. We also don’t have access to or control, verify, or endorse the Content that You and others make available on or from Your account using the Services. Notwithstanding the foregoing, You hereby grant PIQNIC, its employees and agents the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on Your account solely to the extent necessary to provide the Services or as otherwise permitted by these Terms.
PIQNIC has no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
To the extent Content constitutes Personal Data, You and PIQNIC hereby agree that You shall be deemed to be the data controller and PIQNIC (or the relevant PIQNIC Party) shall be deemed to be the data processor as those terms are understood under the European Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive,” and any applicable national legislation implementing the Directive). In providing the Service, PIQNIC may engage another PIQNIC Party and other authorized service providers, to Process Content, including and without limitation, any associated Personal Data pursuant to these Terms within the European Economic Area (the “EEA”), New Zealand and in other countries and territories. Under no circumstances will the relevant PIQNIC Party be deemed a data controller with respect to Content under the Directive or any relevant law or regulation of any Member State as defined in the Directive. You agree that We and the service providers that We utilize to assist in providing the Service to You shall have the right to access Your account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your account and Service Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in these Terms, as well as the data transfer restrictions applicable to Personal Data as set forth in these Terms.
Unless otherwise specifically agreed to by PIQNIC, Content may be hosted or otherwise Processed by the PIQNIC Party in Australia, Singapore, United Kingdom and the U.S. and/or the EEA.
Intellectual Property Rights
Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You and Users to use the Services under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the PIQNIC Services and all hardware, Software, Additional Services and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with the PIQNIC Party and belong exclusively to the PIQNIC. PIQNIC shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Users or other third parties acting on Your behalf. PIQNIC and other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of one or more members of PIQNIC (collectively, “Marks”), and You may only use applicable Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
Third Party Services and Content
In these Terms, “Other Services” means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your account. If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Content) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against PIQNIC with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting PIQNIC to disclose Your Login as well as Content as necessary to facilitate the use or enablement of such Other Services.
Fees and Billing; No Refunds
Unless otherwise indicated on a Form referencing these Terms and subject to the other terms in this Section, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription, or with respect to any additional services related to the PIQNIC Services and which We may offer during Your Subscription (“Additional Service(s)”), at the time such Additional Service is purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within ten (10) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and Your Users.
If You choose to upgrade Your Service Plan or increase the number of User authorized to access and use the Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and PIQNIC does not accept any liability for such loss.
Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against the PIQNIC Party based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
If You pay by credit card or certain other payment instruments, the Service provides an interface for the Service account owner to change credit card information (e.g. upon card renewal). The account owner will receive a receipt upon each receipt of payment. You hereby authorize the PIQNIC payment agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Service and for periodic Subscription Charges applicable to Additional Services until You terminate Your subscription to the Service, and You further agree to pay any Subscription Charges so incurred. You agree to promptly update your account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. Our payment agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
We may, at our sole discretion, choose to offer discounts through promotional campaigns, referrals or other promotions. PIQNIC reserves the right to offer such promotions at its sole discretion. Promotions have no monetary or cash value and can only be used by You to the extent offered as a discount off of Subscription Charges for the applicable Service. Promotions may only be applied to Subscription Charges due for the Service specifically identified by PIQNIC when offering such promotions, and such promotions can only be used by You and are non-transferable. Promotions can only be used during the time when they are still valid as indicated in the applicable promotional materials or by the PIQNIC representative who offers You such a promotion.
Suspension and/or Termination
Either party may elect to terminate Your subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your subscription to the Services is so terminated, Your subscription to the Service (including any and all Additional Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form or otherwise agreed to in writing between You and a PIQNIC representative, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Additional Services to which You have subscribed or which you have deployed, as applicable, as of the time such subsequent Subscription Term commences. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled. If You terminate Your subscription to the Service or cancel Your account prior to the end of Your then effective Subscription Term, or We effect such termination or cancellation pursuant to these Terms, in addition to other amounts You may owe PIQNIC, You must immediately pay any then unpaid Subscription Charges, if any, associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by PIQNIC, provided that You provide advance notice of such breach to PIQNIC and afford PIQNIC not less than thirty (30) days to reasonably cure such breach. We reserve the right to modify, suspend or terminate the Service (or any part thereof), Your account or Your and/or any User’s access and use the Services, and remove, disable and discard any Content if We believe that You or any of Your Users have violated these Terms. This includes the removal or disablement of Content in accordance with Our Copyright Infringement Notice and Takedown Policy. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, any User or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You or any User may be referred to law enforcement authorities at Our sole discretion.
Disclaimer of Warranties
THE SITE AND THE PIQNIC SERVICES, INCLUDING OTHER SERVICES AND ALL SERVER AND NETWORK COMPONENTS WHICH FACILITATE THE PROVISION OF THE PIQNIC SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE PIQNIC SERVICES AND/OR OTHER SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
INDEMNIFICATION
We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of lawyers and/or attorneys engaged by PIQNIC or PIQNIC Party for such defence, provided that (a) You promptly notify PIQNIC of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defence lawyers and/or attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with PIQNIC in connection therewith. If use of the Service by You or Your Users has become, or in Our opinion is likely to become, the subject of any such IP Claim, We may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by the PIQNIC, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to PIQNIC for the corresponding unused portion of Your Subscription Term for such Service. We will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than PIQNIC; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section state the sole, exclusive and entire liability of PIQNIC and any PIQNIC Party to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You or any of Your Users.
You agree to indemnify, defend and hold PIQNIC, PIQNIC Parties and their respective directors, officers, employees and agents harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable legal fees), arising out of or in connection with (i) Your use of the Services by You in a manner not authorized by or in violation of these Terms (to include any other agreement or policies referenced herein), and/or applicable law, (ii) any other breach by You of these Terms, or (iii) Your Content, including but not limited to any claim involving infringement or misappropriation of third-party rights, violations of the right of privacy or publicity, and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Content; provided that We promptly notify you of the threat or notice of such claim.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PIQNIC OR ANY PIQNIC PARTY, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RESELLERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, EVEN IF WE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF PIQNIC OR PIQNIC PARTY RELATING TO THE PIQNIC SERVICES, AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, LICENSORS OR AGENTS, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICE PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PIQNIC HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THESE TERMS. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, AND IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW. WE SHALL ALSO NOT BE HELD LIABLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OR OTHER PROBLEMS RESULTING FROM USE OF THE INTERNET.
Copyright Complaints and Removal Policy
PIQNIC does not tolerate content that appears to infringe any Intellectual Property rights. We shall handle all notices of alleged copyright infringement that comply with our DMCA Policy, and We reserve the right to delete or disable Content alleged to violate these Terms and to terminate repeat infringers.
Governing Law
These Terms (and any Additional Terms, as defined herein) shall be governed by the laws of New Zealand without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts located in New Zealand for the purpose of resolving any dispute relating to this Agreement or access to or use of the Service by You or any Users in Your Organization.
Assignment
You may not assign Your rights or delegate Your duties under these Terms either in whole or in part without PIQNIC’s prior written consent (which consent shall not be unreasonably withheld), except to an affiliate or a party that acquires substantially all of Your assets or business or a majority of Your stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of either party’s successors and permitted assigns.
Force Majeure
Except for performance of a payment obligation, neither party shall be liable under these Terms for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate Your Account for convenience upon written notice to the other party.
Severability
If any provision of these Terms, or a portion thereof, shall be adjudged by the arbitrator or a court of competent jurisdiction to be unenforceable or invalid, that portion shall be eliminated or limited to the minimum extent necessary so that these Terms shall remain in full force and effect and enforceable.
Survival
The following sections will survive the expiration, termination or rescission of these Terms: Confidential Information, Data Privacy and Security, Intellectual Property Rights, Fees and Billing, Suspension and/or Termination, Limitation of Liability, Disclaimer of Warranties, Governing Law.
Anti-Corruption
You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@piqnic.com
Entire Agreement
These Terms together with any Form, and the AUP, SLA, Privacy Policy and DMCA Policy, and any other agreements and policies referenced herein (which are incorporated into these Terms by reference) and any subsequent written amendments thereto (which could include email communications between the parties) represent the sole, exclusive and integrated mutual understanding of the parties concerning Your use of the Services, and supersedes and cancels all previous and contemporaneous written and oral agreements and communications between the parties relating to the subject matter of these Terms. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof; provided that any revisions to these Terms shall only be binding to PIQNIC if executed in a writing expressly overriding these Terms and signed by both Parties.
Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Service, including Associated Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Your continued use of the Service following the effective date of any such amendment may be relied upon by PIQNIC as Your consent to any such amendment. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If You have any legal questions or comments regarding these Terms, please contact us at contact@piqnic.com