POCKETED SOFTWARE-AS-A-SERVICE TERMS OF SERVICE
Last Updated: 02-15-2023
This Pocketed software-as-a-service Terms of Service, together with the Sign-Up Form, the Professional Services Addendum, and any attachments hereto, collectively the “Agreement” and all as amended from time to time, form an agreement between deepND Inc. (“Pocketed”) and the customer (“Customer”) accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services. This Agreement is entered into on the earlier of the date Customer first uses any part of the Services, or the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Pocketed and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of the Services.
BY USING THE SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 11(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO POCKETED THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO POCKETED THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
POCKETED’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH POCKETED’S PRIOR WRITTEN CONSENT.
(a) Provisioning of the Pocketed SaaS Services.
Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Pocketed will make the Pocketed SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this this Agreement during the Term.
(b) Provisioning of the Pocketed Professional Services
If Customer elects to receive the Professional Services, and subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Pocketed will make the Pocketed SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement and the Professional Services Addendum during the Term.
(c) Restrictons on Use.
Customer will not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute the Pocketed SaaS Services or any Intellectual Property Rights therein, or otherwise make the Pocketed SaaS Services available to others other than Permitted Users;
(ii) use the Pocketed SaaS Services to permit timesharing or service bureau use;
(iii) commercially exploit the Pocketed SaaS Services for others;
(iv) use or access the Pocketed SaaS Services:
(B) in a manner that threatens the security or functionality of the Pocketed SaaS Services; or
(C) for any purpose or in any manner not expressly permitted in this Agreement;
(v) use the Services to create, collect, transmit, store, use or process any Customer Data:
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(vi) Modify the Pocketed SaaS Services;
(vii) reverse engineer, decompile or disassemble the Pocketed SaaS Services;
(viii) remove or obscure any proprietary notices or labels on the Pocketed SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
(ix) access or use the Pocketed SaaS Services for the purpose of building a similar or competitive product or service;
(x) perform any vulnerability, penetration or similar testing of the Pocketed SaaS Services; or
(xi) use the Services for any purpose or in any manner not expressly permitted in this Agreement.
(d) Permitted Purpose.
Customer may access and use the Pocketed SaaS Services solely for Customer’s internal business purposes.
(e) Geographic Restrictions.
Customer may access and use the Pocketed SaaS Services only in Canada and United States.
(f) Suspension of Access; Scheduled Downtime; Modifications.
Pocketed may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
(i) suspend Customer’s access to or use of the Services or any component thereof:
(B) for scheduled maintenance;
(C) due to a Force Majeure;
(D) to address any emergency security concerns;
(E) if required to do so by a regulatory body or as a result of a change in applicable law; or
(F) for any other reason as provided in this Agreement.
(ii) Modify the Services.
Customer is required to accept all patches, bug fixes and updates made by or on behalf of Pocketed to the Pocketed SaaS Services.
Pocketed may engage third parties to assist it in providing the Services or any part thereof.
(h) Third-Party Products.
The Pocketed SaaS Services may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third- Party Products provider. Pocketed does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Pocketed as “certified” or otherwise. Pocketed cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Pocketed. Pocketed is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
2. User Accounts
(b) The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Pocketed SaaS Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the Pocketed SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Pocketed of any actual or suspected unauthorized use of the Pocketed SaaS Services. Pocketed reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
3. Ownership; Reservation of Rights
(a) The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Pocketed, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to a access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
(ii) improve and enhance the Services and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
Pocketed may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Pocketed and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Pocketed.
(b) Pocketed or its licensors retain all ownership and Intellectual Property Rights in and to:
(ii) anything developed or delivered by or on behalf of Pocketed under this Agreement;
(iii) all other Pocketed’s Confidential Information, including but not limited to, any reports generated from the Pocketed SaaS Services or any Aggregated Data;
(iv) any Modifications to the foregoing (i), (ii) and (iii) (collectively “Pocketed Property”).
(c) Customer grants to Pocketed and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Pocketed SaaS Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Pocketed’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Pocketed is not obligated to use any Feedback.
(d) All rights not expressly granted by Pocketed to Customer under this Agreement are reserved.
5. Fees and Payment
If applicable, Customer will pay to Pocketed the fees described at https://hellopocketed.io/pocketed-plans (“Fees”). Unless otherwise noted in writing between the Parties (i) all Fees are identified in United States Dollars; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Pocketed SaaS Services or Professional Services exceeds the service capacity agreed to between the Parties or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
(b) Changes to the Fees.
Pocketed reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
(c) Disputed Invoices or Charges.
If the Customer believes Pocketed has charged or invoiced the Customer incorrectly, the Customer must contact Pocketed no later than 30 days after having been charged by Pocketed or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(d) Late Payment.
The Customer may not withhold or setoff any amounts due under this Agreement. Pocketed reserves the right to suspend the Customer’s access to the Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Pocketed’s other rights, Pocketed may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Pocketed.
Any suspension of the Services by Pocketed pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
6. Confidential Information
For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “ConfidenIal InformaIon” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants.
The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to:
(B) in the case of Pocketed to Pocketed’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services;
(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
c) Exceptions to Confidentiality.
Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
(d) Return of Confidential Information.
Upon the termination or expiration of this Agreement and all Professional Services Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 10(c) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Pocketed may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
7. Warranty and Disclaimer
(a) Customer Warranty.
Customer represents and warrants to and covenants with Pocketed that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Pocketed to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Pocketed and to or from all applicable third parties.
(b) GENERAL DISCLAIMER.
POCKETED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY POCKETED TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POCKETED HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, POCKETED EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
(c) NO GUARANTEE OF RESULTS.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE POCKETED SAAS SERVICES ARE PROVIDED FOR INFORMATION PURPOSES ONLY. ANY DECISION MADE AROUND GRANT FUNDING OR NON-DILUTIVE FUNDING IS MADE AT THE DISCRETION OF THE GRANTING ENTITY. POCKETED DOES NOT GUARANTEE THE ACCURACY OF ANY INFORMATION PROVIDED BY THIRD PARTIES. THE SERVICES ARE NOT DESIGNED TO BE THE BASIS OF ANY DECISIONS BEFORE CUSTOMER RECEIVES CONFIRMATION ON FUNDING FROM THE GRANTING ENTITY. CUSTOMER IS RESPONSIBLE FOR ALL GRANT AND FUNDING APPLICATIONS AND SHOULD CONFIRM THE ACCURACY OF ANY SUCH SUBMISSIONS.
8. Customer Indemnity
9. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF POCKETED IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $1,000 OR THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL POCKETED’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL POCKETED BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
10. Term and Termination
This Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term” and with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.
(b) Termination and Suspension.
(i) In addition and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be suspended by Pocketed at any time at Pocketed’s sole discretion.
(ii) Pocketed may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Pocketed believes that Customer or any Permitted User has violated this Agreement; (2) if Pocketed believes the use of Customer Data with the Enterprise Platform is not in Pocketed’s or its users’ best interests; (3) if Pocketed ceases to offer the Services or any component thereof; or (4) as required by applicable laws. Notwithstanding any other Section of this Agreement, Pocketed may, in its discretion, terminate the Agreement at any time by providing at least 30 days advance written notice to Customer.
(iii) Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach.
(iv) Either party may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to the other party if the non-breaching party becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to it for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
(c) Effect of Termination.
Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement:
(i) Customer will immediately lose all access to the Services;
(ii) Each party will return or destroy the other party’s Confidential Information;
(iii) In the event the Agreement is terminated by Customer, Customer will not be entitled to any refund or reimbursement of the Fees.
Notwithstanding the foregoing, Pocketed may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(d) (Survival), and Section 11 (General Provisions).
11. General Provisions
Notices sent to either Party will be effective when delivered in writing and in person or by email, one day a2er being sent by overnight courier, or five days a2er being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Pocketed, to the following Pocketed’s address and email contact:
and (ii) if to Customer, to the current mailing or email address that Pocketed has on file with respect to Customer. Pocketed may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Pocketed current at all times during the Term.
Customer may not assign this Agreement to any third party without Pocketed’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Pocketed may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment.
This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably aPorn to the exclusive personal jurisdiction and venue of the courts sitng therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Pocketed from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions.
Customer will comply with all export laws and regulations that may apply to its access to or use of the Pocketed SaaS Services. Pocketed makes no representation or warranty that the Pocketed SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure.
Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors.
Pocketed’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement.
This Agreement constitutes the entire agreement between the Parties with respect to the subject maPer of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, POCKETED MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY POCKETED, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) Customer Lists.
Pocketed may identify the Customer by name and logo as a Pocketed customer on Pocketed’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
(m) English Language.
It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y raPachent soient rédigés en anglais.
(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or herea2er in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, sePlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(e) “ModificaIons” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(f) “Personal InformaIon” means information about an identifiable individual provided by Customer under this Agreement.
(g) “Pocketed SaaS Services” means: (i) the services through which Pocketed hosts and makes available the Pocketed SaaS Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Pocketed SaaS Services” does not include Professional Services.
(h) “Services” means the Pocketed SaaS Services and the Professional Services, collectively, and any part thereof.
(i) “Professional Services” means the consulting, training and other professional services described in the Professional Services Order Form. The term “Professional Services” does not include Pocketed SaaS Services.
(j) “Professional Services Order Form” means an order form that references this Agreement and Professional Services to be provided by Pocketed and that is executed by both Parties or otherwise accepted by Customer.
(k) “Sign Up Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.
(l) “Website” means any websites used by Pocketed to provide the Pocketed SaaS Services, including the websites located at https://hellopocketed.io/
Professional Services Addendum
1. Effect on this Addendum.
This Professional Services Addendum is part of, and subject to and governed by the terms and conditions of, the Agreement, as amended from time to time. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement.
(b) “Awarded Funds” means any Funding Program in which of which Customer has received funds following a submitted Application;
(c) “Funder” means the organization, agency, or other entity making the Funding Program available; and
(d) “Funding Program” means a sum of money given or made available by a government or other organization for a particular purpose, including grants and other non-dilutive funding.
(e) “Request Form” means the request form completed by the Customer requesting specific assistance with an Application in the form provided by Pocketed to Customer.
(a) Pocketed will use commercially reasonable efforts to deliver the following professional services (the “Professional Services”):
(ii) Gather the information required to complete the Application, including engaging in iterative conversations with the Customer;
(iii) Assist the Customer in preparing the Application;
(iv) Preparing and utilizing an email account for the purpose of the Application (the “Customer Application Email”) and provide user access to Customer;
(v) Assist in responding to any follow-up questions by the Funder following the submission of the Application; and
(b) All Professional Services will be performed remotely.
(c) Pocketed will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Pocketed’s resources may include employees of Pocketed or subcontractors.
(d) Each Grant Request will be in a form substantially similar to the form of the Grant Request provided by Pocketed. Each Grant Request will be duly executed as an amendment to this Agreement, and each Grant Request will be deemed to incorporate by reference the provisions of this Agreement (excluding the provision of other Grant Requests) unless the applicable Grant Request expressly provides otherwise.
4. Professional Services Fees
(b) Success-Based Fees.
(i) In the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, and in the event that Customer determines not to submit the Application at any time, Pocketed will invoice Customer on an hourly basis for all work completed until the date of termination at Pocketed’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee.Notwithstanding the foregoing, in the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, Customer will not owe any Professional Services Fees to Pocketed if Customer is not approved for the Funding Program indicated in the Grant Request.
(ii) Notwithstanding the foregoing, Customer agrees that the Professional Services Fee will equally be payable to Pocketed in the event Customer receives Awarded Funds from Funder for a different Funding Program or in a subsequent Funding Program award cycle using the Application.
(iii) Upon the earlier of notification by the Funder or the Customer that Customer has been approved for a Funding Program, Pocketed will prepare and provide to Customer an invoice for the Professional Services Fee.(c) Project-Based Fees. In the event the Professional Services Fee is a Project-Based Fee as indicated on the Grant Request, Customer will owe the Professional Services Fees to Pocketed regardless of whether the Application is successful.
(e) All payments for the Professional Services Fee will be due and payable within 30 days of Pocketed’s provision of the invoice to Customer.
(f) In the event that Customer determines not to submit the Application at any time, Pocketed will invoice Customer on an hourly basis for all work completed until the date of termination at Pocketed’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee.
5. Customer Dependencies
(a) Customer will cooperate with Pocketed in the performance of the Professional Services and in the development any Application, by completing all customer dependencies listed in the Request Form and the following activities (collectively the “Customer Dependencies”):
(ii) Reviewing the Funding Program to confirm Customer’s eligibility;
(iii) Providing accurate and complete information to Pocketed, including full disclosure of any information reasonably relevant to the Application;
(iv) Finalizing and reviewing the Application to ensure accuracy and completion;
(v) Complying with all terms of the Application and the Funding Program, including hiring and recruiting eligible employees if necessary;
(vi) Notifying Pocketed immediately upon being approved for any Funding Program following an Application;
(vii) Monitoring the Customer Application Email on an ongoing basis; and
(viii) Maintaining all accounting and records.
(b) Customer acknowledges and agrees that if it has not performed the Customer Dependencies including but not limited to providing provided all necessary cooperation or information to Pocketed, or if Pocketed is otherwise denied or delayed access or information by Customer, then Pocketed will be excused, without liability, from performing any further Professional Services. Such failure to perform the Professional Services resulting from Customer’s failures will not relieve Customer from any payment obligations to Pocketed.
(c) Customer acknowledges and agrees that the ultimate responsibility for the Application is with the Customer.
(d) Upon receiving any confirmation that an Application has been successful, Customer will immediately provide Pocketed all relevant details of the Funding Program, including but not limited to the amount, duration, any further requirements, and any further information required by Pocketed to comply with its obligations.
6. No Assignment or Transfer of Intellectual Property
Without limiting Section 3 of the Agreement, Pocketed retains all ownership and Intellectual Property Rights in and to: (a) the Professional Services; (b) anything developed or delivered by or on behalf of Pocketed under this Professional Services Addendum; and (c) any Modifications or enhancements to (a) or (b). All rights not expressly granted by Pocketed to Customer under this Professional Services Addendum are reserved.
7. Change Requests and Termination.
(a) The Parties may agree to changes in the scope of the Professional Services by mutual agreement in writing.
(b) Either Party may terminate any Request Form at any time during the Request Form Term upon written notice to the other Party. In the event that Customer terminates the Request Form, Customer remains responsible for the Professional Services Fees, and will compensate Pocketed for all work completed until the date of termination at Pocketed’s then-current rates. In the event that Pocketed terminates the Request Form during the Request Form Term, Customer will not be liable to Pocketed for any Professional Services Fees incurred by Pocketed related to such Request Form.
8. Limitation of Liability.
NOTWITHSTANDING SECTION 9 OF THE AGREEMENT, NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC REQUEST FORM OUT OF WHICH THE LIABILITY AROSE. POCKETED’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE AGREEMENT.
Without limiting Section 9 of the Agreement: (a) Pocketed will have no liability for loss or recovery of data or records or for Customer’s failure to properly back-up any data or records; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Dependencies.
Survival Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum will survive.