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PERENSO FIELD SALES APPLICATION

United States – Updated and effective from March 30, 2021

INTRODUCTION

These Terms of Use govern the supply by Perenso of the Services described below and any and all use by You of the Application described below.

These Terms set out the legal agreement between Perenso and You with regard to any and all Services and use of the Application, and are binding on and from any use of the Application and/or Services by or on behalf of You. It is Your responsibility to read and understand these Terms.

By installing, accessing or using the Application or the Services (as applicable), You agree to be (and are deemed to be) bound by these Terms.

Free Trial: these Terms will also govern any free trial by You of the Application or the Services. Clause 12 sets out further important information in relation to such free trials.

Defined terms: See clause 14 for defined terms used in these Terms.

 

  1.     Binding agreement

1.1      Subscriber parties

These Terms bind You personally and, if You are the Subscriber or are agreeing (or are deemed to agree) to these Terms on behalf of the Subscriber these Terms bind, the Subscriber (and each Subscriber party referenced in the applicable Order) and each End User, on a joint and several basis, and You represent and warrant to Perenso that You have the full legal authority to act on behalf of, and legally bind, the Subscriber and each such Subscriber party and End User.

1.2      Warranty

In any event, if You are agreeing these Terms or entering into this Agreement on behalf of another party or entity You warrant that you have full legal authority to bind such party/entity to these Terms and this Agreement. You agree to indemnify, defend and hold Perenso harmless against any and all Losses that arise from any breach of that warranty and Perenso’s reliance on it.

 

  1.    Perenso’s responsibilities

2.1      Provision of Services

Subject to Your compliance with these Terms, Perenso agrees to provide You the Services as described in and subject to this Agreement.

2.2      Availability of Application

Perenso will use commercially reasonable efforts to make the Application available 24 hours a day, 7 days a week, except for:
(a)  scheduled maintenance or planned downtime; or
(b)  any unavailability due to circumstances outside of Perenso’s reasonable control.

2.3      Updates

Perenso may, but is not obliged to, make available to You any updates, modifications or enhancements to the Application which are produced in the normal course of business development. Any such updates will be available for electronic download at no extra cost to You via certain ‘app’ stores.

2.4      Your Materials

(a)  Subject to clause 2.4(b), Perenso may, through the Application, provide online storage for Your Materials. If Perenso does so, Perenso:

(i)  will maintain reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of such Your Materials; and
(ii)  other than as set out in clause 2.4(a)(i) above, has no responsibility or liability for the accuracy or deletion of Your Materials, the failure to store, transmit or receive the transmission of Your Materials, or the security, privacy, storage or transmission of Your Materials.

(b)  You acknowledge and agree that Perenso may from time to time set reasonable limits on Your Materials stored through the Application, including limits on file size,
storage space and processing capacity.
(c)  You agree that you are solely responsible for Your Materials and neither Perenso nor its subcontractors are responsible or liable in any way for the content of Your Materials, and:

(i)  You are responsible for backing up Your Materials. Perenso encourages You to back up Your Materials at regular intervals and at all times;
(ii)  You are responsible for the content of Your Materials and ensuring that any such material does not breach any applicable Law and can be legally transmitted via the Application and stored in the Databases; and
(iii)  You control access by End Users to Your Materials and You are responsible for their use of the Application, Databases and Your Materials,

and you will indemnify, defend and hold Perenso and its subcontractors harmless against any and all Losses incurred by either of them from any failure by You to comply with the above.

 

  1.    Your obligations

3.1      Use conditions

As a condition of these Terms, when using the Services, You must not (and must not authorize any third party to):
(a)  translate, reverse engineer, decompile, disassemble or attempt to derive the source code of the Application or Software;
(b)  sublicense, rent, lease, assign or transfer any of Your limited rights under these Terms;
(c)  allow any third party to use or access the Application or obtain the benefit of the Services or the Application provided under these Terms;
(d)  attempt to undermine the security or integrity of Perenso’s system or networks;
(e)  use the Application other than in accordance with the normal operating procedures as notified to You by Perenso from time to time;
(f)  use or misuse the Services in any way which may impair the functionality of the Application or Perenso’s system or networks;
(g)  attempt to gain unauthorized access to any Materials other than those to which You have been given express permission to access pursuant to these Terms; or

(h)  transmit or input into the Application, any files that may damage any other person’s electronic devices or software, content that may be offensive, or Material in violation of any Law (including Material which is protected by copyright or which You do not have the right to use).

3.2      Username and password

You must take all reasonable precautions to ensure that Your username and password are not misused and remain secure and confidential at all times. In particular, You agree:
(a)  not to disclose Your username and/or password to any person;
(b)  not to let any other person use the Application using Your username and password;
(c)  to promptly notify Perenso in the event of loss, disclosure or unauthorized use of Your username and/or password; and
(d)  that You will be liable for Losses incurred in the event Your login details are used by an unauthorized person.

3.3      Other responsibilities

Without limiting clauses 3.1 or 3.2, You:
(a)  are responsible for ensuring that each Subscriber and End User applicable to this Agreement with You complies in full with the terms of this Agreement;
(b)  are responsible for the accuracy, quality and legality of all Your Materials;
(c)  will use the Services only in accordance with these Terms and applicable Laws;
(d)  will comply with the terms of any third party applications with which You use the Application; and
(e)  will promptly notify Perenso if:

(i)  an Insolvency Event has occurred, or is likely to occur, in relation to the Subscriber; or
(ii)  the person or entity that Controlled the Subscriber at the commencement of this Agreement changes or is likely to change (or, if no person or entity Controlled the Subscriber at the commencement of this Agreement, a person or entity obtains or is likely to obtain Control of the Subscriber).

 

  1.    Fees

4.1      Payment

(a)  You must pay Perenso all Fees monthly in advance by the Payment Method You select as part of the Order and You agree:

(i)  if you request additional End User licenses part way through a month, we will charge You (and You will pay in accordance with this clause 4) the applicable additional License Fee for those licenses pro-rated to the end of that month. Thereafter the full License Fee shall be payable for those additional licenses; and

(ii)  if you cancel End User licenses part way through a month, no refund is payable in respect of the Fees paid for those cancelled licenses; and
(iii)  for the purposes of calculating Fees the applicable month is based on the date Your Order is accepted by Perenso.

(b)  Payment upon Perenso issuing an invoice (invoicing) is only available by prior agreement with Perenso and upon You providing Your purchase order in a form acceptable to Perenso. Accordingly, if you select invoicing as Your Payment Method for the Fees, the Services will only commence upon agreement by Perenso that invoicing will apply.
(c)  If you select invoicing as Your Payment Method for the Fees (and Perenso agrees in accordance with clause 4.1(b) that invoicing will apply):

(i)  all invoices are payable strictly within 14 days of the date of invoice;
(ii)  for the first month of Service, we will invoice You upon Order acceptance and You must pay that invoice within 14 days of the date of invoice; and
(iii)  for the second month of Service, and each subsequent month of Service, we will invoice You in advance on the first day of the applicable month and you must pay that invoice within 14 days of the date of invoice.

(d)  If you select any Payment Method for the Fees other than invoicing:

(i)  You authorize us to (and Perenso will) debit the relevant Payment Method (e.g. credit card) for the full amount of all Fees payable on or after the first day of each month of Service;
(ii)  You acknowledge that Perenso may subcontract the payment processing for the Payment Method to a third party (and You agree that Perenso may share any information with the payment processor that is necessary to effect payment); and

(iii)  You will notify us immediately if your selected Payment Method is cancelled or withdrawn or is not able to process payments.

(e)  If any payment remains outstanding 7 days after the due date for payment, for any reason, Perenso is entitled:

(i)  to charge interest (and You will pay in accordance with clause 4) at a rate of 1.5% per month compounding daily or the maximum rate of interest permitted to be charged by applicable Law, whichever is lesser, on the outstanding amount; and/or
(ii)  by notice in writing, immediately suspend Your access to the Services,

for the period during which the amount outstanding remains outstanding.
(f)  If the relevant payment remains outstanding 14 days after the due date for payment, without prejudice to any other rights it may have, Perenso may terminate Your access to the Services, in which case clause 11.3 will apply.

4.2      Changes to Fees

Perenso may change:
(a)  the amount of the Fees or introduce a new fee; or
(b)  the manner or frequency in which the Fees are payable,
by giving You at least 30 days’ prior written notice of the change. Upon expiry of that notice period the revised Fees will apply to this Agreement (and You will pay them in accordance with clause 4).

4.3      Sales and Use Taxes

(a)  Unless otherwise provided in these Terms, all fees payable by You have been calculated without regard to, and are exclusive of, Sales Taxes,, duties, customs and surcharges.
(b)  You are responsible for paying all Sales Taxes, duties, customs and surcharges, if any, associated with the supply of the Services at the same time as payment is made for the relevant Services. Any and all Sales Taxes will be charged to You at the same time as the applicable License Fees and Support Fees are charged and are payable by You in accordance with clause 4.

  1.    Changes to Terms

(a)  Subject to clause 5(b), Perenso reserves the right to make any changes to the Application, the Services or these Terms at any time.
(b)  Save where the change is required to restore or preserve the security or integrity of the Application (where no notice is required), Perenso will use reasonable endeavors to

give at least 30 days’ written notice of any change that is likely to materially affect or disrupt the manner in which You use the Services.
(c)  Perenso reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. Your use of the Services means that You accept and agree to (i) any such modification and (ii)  the most current version of these Terms at the time of the use available at www.perenso.com

 

  1.    Intellectual Property and Licenses

6.1      License

Subject to Your compliance with these Terms, Perenso grants You a non-exclusive, non-assignable, non-transferable, non-sublicensable license to download, access and use the Application for Your business purposes, solely for the term of this Agreement and in accordance with and subject to the restrictions set out in these Terms.

6.2      Perenso Materials

(a)  Title to, and all IPR in, the Perenso Materials and the Perenso Marks remains the property of Perenso (or its licensors) at all times.
(b)  If under any Laws You have or acquire any IPR in the Perenso Materials, without prejudice to any rights Perenso may have, You hereby assign any and all such IPR to Perenso, and agree to execute any documents required to effect any such assignment. You appoint Perenso as Your attorney-in-fact with powers of substitution for the purpose of executing any and all documents relating to such assignment.

6.3      Your Materials

(a)  Subject to clause 6.3(b), title to and all IPR in Your Materials remains Your property (or the property of Your licensors).
(b)  You grant to Perenso a non-exclusive and non-transferable license to use and sub-license Your Materials for the purposes of providing the Services to You.

 

  1.    Warranties and Support

7.1      No Warranties

(a)  THE APPLICATION AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS.  PERENSO DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE APPLICATION AND/OR THE SERVICES. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE APPLICATION. YOUR SOLE REMEDY AGAINST PERENSO FOR DISSATISFACTION WITH THE APPLICATION OR THE SERVICES IS TO STOP USING THE APPLICATION OR THE SERVICES. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES..
(b)  Subject to clause 7.1(a):

(iii)  You expressly acknowledge that availability and performance of the Services and the Application may vary in the United States(including as a result of the relevant network coverage);
(iv)  PERENSO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CURRENCY, ACCURACY, SUITABILITY, FUNCTIONALITY OR RELIABILITY WITH RESPECT TO THE APPLICATION AND THE SERVICES AND ANY CONTENT OR INFORMATION ASSOCIATED WITH THE APPLICATION AND THE SERVICES;
(v)  Without limitation on the foregoing, Perenso does not warrant that:

(A)
(B)  the Application is compatible with Your hardware or software;

(C)  the Application or the Services will be error-free or uninterrupted, or that any defects will be corrected, or that your use of the Application will provide specific results.;
(D)  defects will be corrected; or
(E)  the Application or the server that makes it available is free of errors or viruses, worms or ‘Trojan Horses’.

.

7.2      No reliance

Without limiting clause 7.1, in accepting these Terms and using the Application, You acknowledge that:
(a)  You have not relied on any warranty or representation (whether written or oral) in relation to the Application or the Services;
(b)  to the extent Perenso has made any warranties or representations in relation to the Application or the Services, You have been provided with an opportunity to verify the accuracy of that warranty or representation; and
(c)  You have relied entirely on Your own enquiries in relation to the Application and the Services, and the appropriateness of the Application and the Services for your purposes.

 

7.3      Third parties

Subject to clause 2.4, You acknowledge that certain Services and Databases in respect of the Application may be provided by third party subcontractors of Perenso. You agree that Perenso is not responsible for and shall not be liable for:
(a)  any failure of or inadequacy in any administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Materials applied by third party subcontractors;
(b)  any breach of any applicable laws by those third party subcontractors;
(c)  the accuracy or deletion of Your Materials, the failure to store, transmit or receive the transmission of Your Materials, or the security, privacy, storage or transmission of Your Materials by those third party subcontractors;
(d)  any loss of data by those third party subcontractors or inability of those third party subcontractors to restore any data; or
(e)  any breach or loss of data during transmission to any Database,
other than as a direct result of the gross negligence of Perenso.

7.4      Support

(a)  Subject to Your compliance with these Terms, Perenso may provide You with access to certain email and technical support services for operational and technical issues. Perenso shall be entitled to charge You the Support Fees (and You will pay in accordance with clause 4) for all Support Services, other than the reporting of system failures or bugs, provided by Perenso from time to time.
(b)  Support Services that are provided by Perenso from time to time may be accessed via the applicable Perenso website during the times prescribed on the website.
(c)  For the avoidance of doubt, the Support Services do not include:

(i)  correction of defects or errors caused by:

(A)  the use of the Application other than in a manner authorized by Perenso or specified in any functional documentations provided by Perenso;
(B)  modification, revision, variation, translation or alteration of the Application or Software not authorized by Perenso;
(C)  Your failure to provide suitably qualified and adequately trained operating and programming staff for the operation of the Application; or
(D)  hardware or equipment fault;

(ii)  equipment maintenance; or
(iii)  diagnosis or rectification of faults not associated with the Application.

 

  1.    Liability and Indemnity

8.1      Indemnity

You indemnify, defend and hold Perenso and its officers, employees, agents and subcontractors (those indemnified) harmless against any Loss to the extent such Loss is suffered or incurred by those indemnified as a result of:
(a)  use of the Application and/or the Services by You other than in accordance with these Terms;
(b)  any breach of this Agreement by You or Your officers, employees and agents;
(c)  any Claim by a third party that Your Materials infringe any third party Intellectual Property right; and
(d)  any act or omission by You or Your officers, employees and agents in connection with this Agreement or the Services (including any use of the Application or the Services).

8.2      Limitation of liability

Subject to clauses 7.1(a) and 8.3, Perenso’s liability with respect to any Claim under or in connection with these Terms or the Application or the Services shall not exceed the amount actually paid by You to Perenso in relation to the Services in the 12 months preceding the incident giving rise to the Claim.

8.3      No Consequential Damages

Subject to clause 7.1(a), in no event shall Perenso be liable for any Loss arising from any failure to provide or delay in providing the Services, or any loss of profits, sales, data, orders, opportunity, revenue, goodwill or anticipated savings, economic loss or any other consequential, special, incidental or indirect loss or damage arising under or in connection with these Terms or the Services, however caused and whether arising in contract, tort (including negligence) or otherwise, even if a party has been advised of the possibility of such damages being incurred.

8.4         Third Party Beneficiary

Any customer of Perenso shall be considered a third party beneficiary of, and with the power to enforce, Sections 8.2 (Limitation of Liability) and 8.3 (No Consequential Damages) of this Agreement, and it shall be interpreted consistent therewith.

 

  1.    Confidentiality

(a)  A party (the first party) will not use or disclose the other party’s Confidential Information, other than for the purposes of exercising its rights or performing its obligations under this Agreement (and then only to the extent required), unless the first party:

(i)  has obtained the prior written consent of the other party to the disclosure; or
(ii)  is legally compelled to do so.

(b)  Each party (the applicable party) will take all reasonable steps to ensure that its employees, agents and subcontractors comply in full with the applicable party’s obligations under this clause.

 

  1.  Privacy, Website and additional terms

(a)  Each party must comply and ensure its employees, agents and subcontractors comply with the California Consumer Privacy Act of 2018, Cal. Civ. Code Section 1798.100, et al, to the extent applicable, and any other applicable Laws regarding personal information or privacy.

(b)  By using the Application and/or the Support Services, You consent to Perenso collecting, using and disclosing Your Personal Information in accordance with the Privacy Policy. If You do not provide Perenso with Your Personal Information, some or all of the Services may be affected or may be unable to be provided.
(c)  Without limiting clause 10(a) or 10(b):

(i)  Perenso may disclose Your Personal Information and Your Materials in order to comply with its legal obligations, including to law enforcement agencies, courts and government or regulatory bodies;
(ii)  You acknowledge that Your Materials (including any Personal Information contained in Your Materials or transmitted using the Application or stored in any Database) may be transferred to service providers located overseas as described in the Privacy Policy to the extent permitted by applicable law;
(iii)  You acknowledge and agree to comply with the contents of the Privacy Policy and hereby provide the consents contained in it and consent to our acting in accordance with it.

(d)  You agree to comply with the terms and conditions that apply to the use of and access to any Perenso Application or the Services, including any terms and conditions that apply to use of any Database or storage provided by a third party for an Application, as those terms are disclosed on a Perenso website from time to time.

 

 

  1.  Termination

11.1    Termination by You

You may stop using the Services at any time on written notice to Perenso (or by making the necessary changes to Your Account on the applicable Perenso website. Any Fees paid by you prior to the termination date are not refundable, and termination by You shall not relieve You of any obligation to pay any accrued but unpaid Fees.

11.2    Termination by Perenso

(a)  Perenso may at any time terminate this Agreement with You on written notice if:

(i)  You have breached any of these Terms;
(ii)  clause 4.1(f) applies;
(iii)  an Insolvency Event occurs in relation to You;
(iv)  the person or entity that Controlled the Subscriber at the commencement of this Agreement changes (or, if no person or entity Controlled the Subscriber at the commencement of this Agreement, a person or entity obtains Control of the Subscriber);
(v)  Perenso is required to do so by Law; or
(vi)  Perenso has elected to discontinue the Services (or any part thereof).

(b)  In addition, notwithstanding any other clause in these Terms, Perenso may at any time terminate this Agreement with You at any time on 30 days’ written notice to the applicable Subscriber.
(c)  In the event of termination by Perenso other than for breach of these Terms or pursuant to clause 4.1(f), Perenso will:

(i)  use reasonable endeavors to provide you with 30 days prior notice of the termination; and
(ii)  provide You with a pro-rata refund of the prepaid but unused portion of the Fees (if any) as at the date of termination.

(d)  In the event of termination by Perenso for breach of these Terms or pursuant to clause 4.1(f), Perenso may, in addition to terminating this Agreement:

(i)  be regarded as discharged from any further obligations under these Terms (including the obligation under clause 11.3(a)); and
(ii)  pursue any additional or alternative remedies provided by Law.

 

11.3    On termination

Notwithstanding termination or expiry of this Agreement, on termination:
(a)  subject to clause 11.2(d)(i), on request by You within 30 days of the date of termination, Perenso will make Your Materials available to You for export or download in the format determined by Perenso (acting reasonably);
(b)  save as set out in clause 11.3(a), Perenso will have no obligation or liability to You or any third party in relation to:

(i)  Your Materials; or
(ii)  the termination of the Services;

(c)  all Fees payable under this Agreement must be paid on termination (or earlier if required by this Agreement) and are not refundable on termination. Perenso is hereby authorized to process the required payments at that time in accordance with clause 4.1;
(d)  the limited license set out in clause 6.1 shall terminate;
(e)  You must immediately discontinue your use of the Services and permanently uninstall all instances of the Application from any of Your hardware;
(f)  the accrued rights and remedies of the parties are not affected;

(g)  each party must return to the other party all materials, signs, and other property provided to that party under this Agreement; and
(h)  clauses 4 (Fees), 6 (Intellectual Property and Licenses), 8 (Liability and Indemnity), 9 (Confidentiality), 10 (Privacy, Website and additional terms), this clause 11.3 (On termination), 13 (General) and any other provisions that by their nature are intended to survive, shall survive termination or expiration of this Agreement.

 

  1.  Free Trial

(a)  If You register for a free trial of the Application, Perenso will make the Application available to You for use in accordance with these Terms until the earlier of the date:

(i)  the free trial period expires or is terminated (as determined by Perenso); or
(ii)  of commencement of a paid subscription for the Application and Services by You pursuant to an Order.

(b)  On expiration or termination of the free trial period (as determined by Perenso), if You have not commenced, or have elected not to commence, a paid subscription for the Application and Services, any and all of Your Materials inputted into the Application during the free trial period will be deleted by Perenso without Perenso incurring any liability of any kind to You.
(c)  Perenso reserves the right to terminate any free trial at any time and to limit the functionality of the Application, and to reduce the scope of or not provide at all the Support Services, during any free trial period.

 

  1.  General

13.1    Governing Law

These Terms are governed by the laws applicable in the State of Colorado without regard to its conflict of law principles and each party submits to the exclusive jurisdiction of the federal and state courts of that State. In the event of any controversy or dispute between You and Perenso arising out of or in connection with your use of the Application or our Services, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law. The parties expressly disclaim the United Nations Convention for the International Sale of Goods.

13.2    Notices

(a)  A party notifying or giving notice under this Agreement must give notice:

(i)  in writing;
(ii)  addressed to the address of the party specified in the applicable Order or such other address as notified in writing by that party from time to time; and
by either:
(iii)  delivering it to that address; or
(iv)  sending it by pre-paid mail to that address; or
(v)  in the case of notices provided by Perenso only, sending an email to the email address You provided in the applicable Order.

(b)  A notice or other communication is taken to have been given (unless otherwise proved):

(i)  if delivered by hand, on the date of delivery; or
(ii)  if mailed, on the second Business Day after posting; or
(iii)  if emailed (in the case of notices provided by Perenso only), on the date of sending the email.

(c)  A party may change its address for service by giving notice of that change in writing to the other party.
(d)  Email is not a valid method of service for You to notify Perenso or give notice to Perenso under this Agreement.

 

13.3    Entire Agreement

In relation to their subject matter, these Terms:
(a)  comprise the whole agreement between the parties; and
(b)  supersede all oral and written communications by or on behalf of any of the parties (including any term sheet or letter of intent).
To the extent that any terms in any purchase order issued by You or a Subscriber in respect of the subject matter of this Agreement) are inconsistent with this Agreement, the terms of this Agreement shall prevail.

13.4    Severability

If part or all of any clause of these Terms is illegal, invalid or unenforceable it will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable, but if that is not possible:
(a)  it will be severed from these Terms and the remaining provisions of these Terms will continue to have full force and effect; and
(b)  the parties will attempt to replace that severed part with a legally acceptable alternative clause that meets the parties’ original intention in relation to the subject matter of the severed clause.

13.5    Delay

Without limiting clause 2.2(b), a party will not be liable for any failure or delay in the performance of its obligations under these Terms if the failure or delay is outside of that party’s reasonable control. This clause 13.5 does not apply to an obligation to pay money.

13.6    Assignment and Subcontracting

You may not assign or attempt to assign or otherwise transfer any right or obligation arising out of these Terms without the prior written consent of Perenso, which may be given or withheld or conditioned in Perenso’s absolute discretion.

You agree that Perenso may at any time and for any duration subcontract to any third party the performance of any or all of Perenso’s obligations under this Agreement or in connection with the Application and Perenso may remove or replace any such third party from time to time at its discretion.

 

13.7    Relationship of Parties

The parties are independent contractors. Nothing in these Terms shall be deemed to create a relationship of employer-employee, principal-agent, association, partnership, joint venture or agency between or among the parties or any of their respective personnel.

13.8    Waiver

A party’s failure to exercise or delay in exercising a power or right does not operate as a waiver of that power or right.

13.9    Further Assurance

Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to these Terms.

13.10   Rights Cumulative

The rights and remedies provided in this Agreement are cumulative and do not exclude any rights or remedies provided by law.

 

  1.  Definitions

In these Terms:

Agreement means these Terms and the applicable Order. In the event of any inconsistency between the terms of this Agreement the terms contained in the Order shall prevail to the extent of the inconsistency over these Terms.

Application means the Perenso Field Sales order entry software application, incorporating the Software and the Databases, as included in the applicable Order.

Claim means any action, claim, demand, suit, judgment or proceedings of any nature or kind whatsoever.

Confidential Information includes all information exchanged between Perenso and You, whether in writing, electronically or orally, 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 (but does not include information which is, or which becomes, publicly available other than through a disclosure in breach of these Terms). Your Confidential Information includes Your Materials and Perenso Confidential Information includes the Perenso Materials, the Services, the Application, the Software, the Databases, the terms and conditions of this Agreement and any Order (including pricing) to the extent not publicly available, and any business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Perenso.

Control means the power to manage or direct the affairs of an entity, either directly or through a subsidiary or contractual relationship..

Databases means the Perenso Field Sales order entry software application databases provided for Your use (which may be provided by third parties).

End User means a person or entity that uses the Services or the Application pursuant to this Agreement with the Subscriber.

Fees means the License Fee and the Support Fee (plus any applicable Taxes).

Sales Taxes means any goods and services taxes, value added taxes, sales and use taxes or similar taxes, now or hereinafter imposed, on the performance or delivery of Services.

Insolvency Event occurs if You go into liquidation, administration, insolvency, bankruptcy or such other similar arrangement with creditors (or if, in the reasonable opinion of Perenso, You are reasonably likely to do so).

Intellectual Property or IPR means all intellectual property rights and related rights in the United States and throughout the world, including patents, copyright (including moral rights), rights in circuit layouts, registered designs, trade secrets, trademarks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights.

Laws means:
(a)  the common law and equity;
(b)  any federal or state statute, rule, regulation, or ordinance; or
(c)  any license, permit, authorization, accreditation, code of practice, code of conduct or other requirement which is enforceable against a party or which is issued under an instrument referred to in paragraph (b).

License Fee means the monthly license fees payable by You relating to the provision of the Application, as specified in the applicable Order or as otherwise published on the Perenso website (www.perenso.com) or as otherwise agreed between the parties, and as may be amended in accordance with this Agreement.

Losses means all liabilities, losses, damages and costs and expenses suffered or incurred in connection with a Claim including but not limited to reasonable attorney’s fees.

Materials means any materials provided by Perenso or You under or in connection with the Services, including without limitation:
(a)  software;
(b)  information, data, documents, images, photographs, graphics, audio, videos or webcasts; or
(c)  products.

Order means an order submitted (online or otherwise) to and accepted by Perenso for use of the Application (and, if submitted by completing an Order on the Order page of the Perenso website, includes the information entered on that Order page).

parties means Perenso and You.

Perenso means Perenso Inc..

Perenso Marks means the trademarks, logos and service marks displayed on or used by Perenso in relation to the Application.

Perenso Materials means any Materials (including the Application) provided by Perenso under or in connection with these Terms, the Application or the Services.

Personal Information means any information that identifies or can reasonably be used to identify an individual, such as first and last name, social security number or other government issued number or identifier, date of birth, home or other physical address, e-mail address or other online contact information, IP address, telephone number, financial account number, credit or debit card number, biometric data, mother’s maiden name or other personally identifiable information.

Privacy Policy means Perenso’s privacy policy, available at www.perenso.com/privacy-policy, as updated from Perenso from time to time.

Services means making the Application available to You for use in accordance with these Terms, and all other services to be provided by Perenso under or in connection with these Terms, including the Support Services, including any services described in the applicable Order.

Software means the Perenso software code and associated documentation, including without limitation the Application and any present and future mobile and tablet applications (including the Application) related to the Application and all related content files, drivers, patches or fonts.

Subscriber means the person or entity named in an Order that registers to use Application by executing an Order and includes, where relevant, any other person or entity named in the Order on behalf of whom that first person/entity registers to use the Application.

Support Fees means the fees (which may be a monthly charge or on a “pay per use” basis) payable by You in relation to the Support Services, as specified in the applicable Order or as otherwise published on the Perenso website (www.perenso.com) or as otherwise agreed between the parties, and as may be amended in accordance with this Agreement.

Support Services means the support services which may be provided by Perenso at Perenso’s discretion, as described on the applicable Perenso website.

Taxes has the meaning given in clause 4.3(a).

Terms means these Perenso Field Sales Terms of Use, as amended from time to time in accordance with clause 5.

You means each of you, the Subscriber and each End User, and Your has the corresponding meaning.

Your Materials means any Material that is inputted or transmitted by You or with Your authority into or through the Application.

© Perenso Inc. 2021