314e Corporation, INC.
TERMS OF SERVICE
Last Modified: July 22, 2022
This Terms of Service Agreement (“TOS") are entered into by Penknife and Customer and govern Customer’s access to and use of the Service. Here “Penknife”, “we”, “us” and “our” refers to 314e Corporation, and “Customer” refers to you or the company, business or other legal entity on whose behalf you are entering into this TOS, as applicable, and its affiliates.
By accepting this TOS or by accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by this TOS.
If you are entering into this TOS on behalf of a company, business, or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS. If you do not have such authority, or if you do not agree to this TOS, you must not accept this TOS and may not access or use the Service.
PENKNIFE MAY MODIFY THESE TOS FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13.1 (MODIFICATIONS).
1. Service
Access to Service. Subject to the terms and conditions set forth in this TOS, Penknife will make the Service available to Customer during the Subscription Term. CUSTOMER MAY CANCEL ITS SUBSCRIPTION AND CHANGE THE NUMBER OF ITS AUTHORIZED USERS, SUBSCRIPTION PLAN LEVEL, ITS SUBSCRIPTION TERM AND OTHER ANCILLARY SERVICES ONLY IN ACCORDANCE WITH SECTION 8.2 (NON-RENEWAL OR SUBSCRIPTION CHANGES BY CUSTOMER). Customer will be responsible for compliance with this TOS by each of its Authorized Users. General Restrictions on Use. Customer will (i) not access the Service by any means other than through the Site, (ii) not share individual login credentials for the Service with any third party, (iii) ensure that each Authorized User has separate login credentials, (iv) not exceed the scope of Customer’s authorized use of the Service, (v) access and use the Service only for lawful and authorized purposes, and in no event in connection with competitive research or for scoping, benchmarking, developing or providing any similar or competitive product or service or to determine whether the Service or any element of the Service is within the scope of any patent, (vi) not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, timeshare or otherwise commercially exploit (other than internal business use for its intended purpose) or make the Service available to any third party, (vii) not harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications, (viii) not use, or permit any Authorized User to use, the Service if Customer or such Authorized User, as applicable, is under eighteen (18) years of age, (ix) not circumvent or attempt to circumvent contractual usage restrictions, and (x) not reverse engineer, disassemble, or decompile the Penknife Technology or any component thereof, or attempt to discover or disclose the source code of the Penknife Technology or any component thereof except as permitted by applicable law notwithstanding this prohibition. Restrictions on Specific Types of Use and Content. CUSTOMER AGREES NOT TO USE THE SERVICE TO STORE, PROCESS OR TRANSMIT SENSITIVE INFORMATION (AS DEFINED IN SECTION 14 (DEFINITIONS)). Penknife WILL NOT HAVE, AND HEREBY SPECIFICALLY DISCLAIMS, ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SERVICE TO STORE, PROCESS OR TRANSMIT SENSITIVE INFORMATION. Without limiting the foregoing, Customer fully understands and agrees that the Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), and Customer may not use the Subscription Service where Customer’s usage would be subject to such laws. Customer may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA) or Payment Card Industry Data Security Standards.
2. Customer Content
Rights to Customer Content. Customer reserves all right, title and interest (including all Intellectual Property Rights) in and to the Customer Content, and no ownership right, title or interest in any Customer Content is granted to Penknife. Customer grants Penknife and its licensors permission to use Customer Content, and authorizes Penknife and its licensors to process such Customer Content, in each case solely to the extent necessary to provide the Service to Customer or to provide support or perform analysis as further described below. Restrictions on Customer Content. Customer will not use the Service (or assist any third party) to email or otherwise upload any content that (i) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any person, (ii) Customer does not have a right to upload under any Applicable Law (including under any Applicable Data Protection Laws) or under any contractual or fiduciary relationship, (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (iv) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, or hateful racially or ethnically or (v) in the sole judgment of Penknife, may cause harm to Penknife, the Service, the Site, or other users of Penknife’s products and services.
3. Proprietary Rights
Rights to Penknife Technology. Penknife reserves all right, title and interest (including all Intellectual Property Rights) in and to Penknife Technology, and no right, title or interest in any Penknife Technology is granted to Customer. Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service. Customer will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Service. Feedback. Customer may, at its option, provide Feedback about the Service to Penknife. If Customer provides Feedback, then Customer assigns to Penknife all right, title, and interest in that Feedback. Customer agrees that all Feedback will be considered non-confidential information for the purposes of this TOS. Service Data. Notwithstanding anything to the contrary in this TOS, Customer agrees that Penknife may collect Service Data, and Penknife may use Service Data to develop, improve, support and operate its products and services during and after the Subscription Term. Penknife may aggregate and anonymize Service Data and share it with third parties provided that Penknife does not include any Customer Content or identify Customer as the source of the Service Data. Marketing. Customer hereby grants Penknife permission to identify Customer as a Penknife customer and for similar marketing purposes, including on the Company’s website and other communications, and to use Customer’s Trademark’s in connection with these activities (collectively, “Marketing Activities”). Upon Customer’s written request, which may be submitted by email to privacy@penknife.app, Penknife will promptly discontinue its use of Customer’s Trademarks in connection with any Marketing Activities.
4. Account Security
Security. At all times that Penknife processes Customer Personal Information, Penknife will maintain the administrative, physical and technical controls, which are designed to protect the security, confidentiality and integrity of the Customer Personal Information, which are described in Annex B to the Data Protection Addendum referred to in Section 4.4 (“Safeguards”). Customer acknowledges that, other than as provided for in this Section 4.1, Customer bears sole responsibility for adequate security and protection of Customer Content. Customer further acknowledges that, if Customer wishes to protect Customer Content when transmitting it to Penknife, it is Customer’s responsibility to do so using a secure and encrypted connection. Access and Monitoring. Penknife may monitor and access Customer’s account in order to respond to Customer’s requests for technical support, to ensure proper functioning of the Service and to improve the Service and Site. Penknife may, but is not required to, monitor, access and disclose to law enforcement and judicial authorities information concerning Customer, Customer’s account, Authorized Users and use of the Service, and Customer Content if required (i) to protect Penknife, its customers, users or partners, including in connection with the enforcement of this TOS or (ii) in Penknife’s reasonable judgment, to avoid an actual or potential violation of Applicable Law. Data Protection Addendum. Penknife’s Data Protection Addendum describes how Penknife will process, retain and delete Personal Information on Customer’s behalf in connection with the Service.
5. Confidentiality
Each party agrees (i) to use the other party’s Confidential Information only to the extent necessary to perform its obligations or exercise its rights under this TOS or, in Penknife’s case, as directed by Customer, (ii) to protect the confidentiality of the other party’s Confidential Information in the same manner as it protects the confidentiality of its own similar information (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and (iii) to disclose Confidential Information only on a need to know basis to its service providers who have executed written agreements requiring them to maintain such information as confidential upon terms not materially less protective than the terms set forth in this TOS. Notwithstanding the foregoing, (x) the party receiving Confidential Information may disclose such information to the extent that such disclosure is required by Applicable Law or by order of a court or other governmental authority and (y) Penknife may disclose Customer’s Confidential Information to the extent provided for under Section 4.2 (Access and Monitoring). To the extent it is legally permitted to do so, the party receiving Confidential Information agrees to give the party disclosing Confidential Information reasonable notice of any disclosure made or to be made under clause (x) of the immediately preceding sentence so as to allow the party disclosing Confidential Information to seek a protective order or other appropriate remedy.
6. Warranties
Warranties. Customer agrees and warrants that (i) Customer has full power and authority to enter into this TOS and that this TOS is binding upon it and enforceable against it in accordance with its terms, (ii) Customer will comply with all Applicable Laws in connection with Customer’s access to and use of the Service and the Site, (iii) Customer is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, (iv) Customer is not listed on any U.S. government list of prohibited or restricted parties, (v) Customer owns all Customer Content or has obtained all permissions, releases, rights or licenses required to engage in Customer’s posting and other activities (and allow Penknife to perform its obligations and exercise its rights) in connection with the Service without obtaining any further releases or consents, (vi) Customer Content and activities undertaken by Customer in connection with the Service, and Penknife’s exercise of all rights and licenses granted by Customer in this TOS, do not and will not violate, infringe, or misappropriate any third party’s Intellectual Property Rights nor does the Customer Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing, (vii) Customer will comply with applicable third party terms when using the Service, (viii) Customer has provided true, accurate, and correct information to Penknife in connection with Customer’s account creation and use of the Service, and (ix) neither Customer nor any Authorized User is under eighteen (18) years of age. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE SITE ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PENKNIFE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PENKNIFE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE CUSTOMER’S THIRD-PARTY SERVICES OR CUSTOMER’S CONTENT (INCLUDING ANY CONTENT CUSTOMER MAY STORE ON ANY THIRD-PARTY SERVICE). NO INFORMATION, ADVICE OR SERVICES OBTAINED BY CUSTOMER FROM PENKNIFE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS. OUR LICENSORS MAKE NO WARRANTY OF ANY KIND REGARDING THE SERVICE, PENKNIFE TECHNOLOGY OR OTHERWISE UNDER THIS TOS.
7. Payments
Fees. Customer is responsible for the payment of subscription fees for its subscription to the Service in accordance with this TOS and Penknife’s standard payment and billing policies. If Customer increases the number of Authorized Users during a Subscription Term, the fees for newly Authorized Users will be prorated over the remainder of the then-current Subscription Term, provided that Authorized Users added mid-month will be charged for the entire month. The pricing and payment terms for any renewal Subscription Term will be the same as those during the prior Subscription Term unless Penknife has provided Customer with notice of any change to the pricing and/or payment terms at least 60 days before the end of the current Subscription Term, in which case any such change will be effective at the beginning of the renewal Subscription Term. Payment Terms. Customer will pay all applicable fees in accordance with this TOS and the related Order Form or online subscription form, as applicable. Except as otherwise specified in this TOS, all payment obligations are final, non-cancelable and non-changeable, and all fees paid are non-refundable. Credit Card Payments. If Customer chooses to pay by credit card, Customer agrees and warrants that its credit card information is, and will be maintained as, true, complete, accurate and up to date, and that Customer is authorized to use such credit card to pay for its subscription for the Service. Customer agrees to pay and hereby authorizes Penknife to bill Customer’s credit card in advance on a periodic basis in accordance with the terms of this TOS and the applicable Order Form or online subscription form, as applicable. Customer will not chargeback any amounts paid to Customer and will reimburse Penknife for any chargeback fees associated with the foregoing. Taxes. Fees do not include any Taxes. Customer is responsible for paying all Taxes, excluding only taxes based on Penknife’s net income. If Penknife has the legal obligation to pay or collect Taxes on behalf of or from Customer, Customer agrees to pay the amount of these Taxes to Penknife unless Customer provides a valid tax exemption certificate from the appropriate taxing authority. Late Payments. Any late payments will be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by Applicable Law, whichever is less.
8. Term and Termination
Subscription Term. Customer will select a Subscription Term as part of its subscription process. Customer may not terminate its subscription prior to the end of its then-current Subscription Term, except pursuant to Section 8.3 (Termination by Customer for Cause). UNLESS TERMINATED OR MODIFIED IN ACCORDANCE WITH THIS TOS, AT THE END OF EACH SUBSCRIPTION TERM, CUSTOMER’S SUBSCRIPTION TO THE SERVICE WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL SUBSCRIPTION TERM EQUAL IN LENGTH TO THE MOST RECENTLY COMPLETED SUBSCRIPTION TERM. Non-Renewal or Subscription Changes by Customer. Unless otherwise specified in an Order Form, if Customer wishes to to prevent the automatic renewal of its subscription, to downgrade its subscription plan level, to change its Subscription Term, to reduce its number of Authorized Users or to reduce or terminate any ancillary services, Customer must provide written notice to Penknife in accordance with the procedures set forth on the Site on or before the last Business Day of Customer’s then-current Subscription Term. Any such changes will go into effect upon the commencement of the following Subscription Term. Customer may upgrade its subscription plan level, increase its number of Authorized Users or add ancillary services effective at any time during a Subscription Term, and any incremental subscription fees associated with such upgrade or increase will be charged on a prorated basis for the remaining Subscription Term. Upon renewal, Customer’s subscription fees will reflect any such upgrades and increases. Termination by Customer for Cause. Customer may terminate its subscription to the Service for cause by delivering written notice to Penknife in accordance with the procedures set forth on the Site. For the purposes of this Section 8.3, “cause” means (i) if Penknife has materially breached this TOS and such breach remains uncured after 30 days from Customer’s written notice of breach, or (ii) immediately, if Penknife becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. To be effective, any such notice must expressly state the reasons for the claimed breach in sufficient detail. Non-Renewal, Termination and Suspension by Penknife. Unless otherwise specified in an Order Form, Penknife may deliver notice of non-renewal of Customer’s subscription to the Service at any time prior to the end of Customer’s then-current Subscription Term. Penknife may modify, suspend or terminate Customer’s subscription to the Service for cause or discontinue the Service (or any part thereof) in its sole discretion, in each case at any time immediately upon notice to Customer. For the purposes of this Section 8.4, “cause” includes (i) if Customer does not accept and agree to be bound by any modification to this TOS, (ii) if Customer has violated this TOS or Applicable Law, including for non-payment, (iii) if Penknife reasonably believes that Customer’s use of the Service may cause harm to Penknife, the Service, the Site or other users of Penknife’s products and services or (iv) if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. While Customer’s subscription is suspended, Customer will be unable to access or use the Service or Customer Content. Penknife will use good faith efforts under the circumstances to provide reasonable notice to Customer prior to termination or suspension of Customer’s account by Penknife pursuant to this Section 8.4. Effect of Termination. Except as set forth in Section 8.6, upon termination of its subscription to the Service for any reason, Customer will have no further right to access and use the Service or access to Customer Content. If Customer’s subscription to the Service is terminated by Penknife for cause or by Customer without cause, Penknife will be entitled to all of the fees due under this TOS for the entire Subscription Term. If Customer’s subscription to the Service is terminated by Penknife without cause or by Customer for cause, or if Penknife discontinues the Service (in whole and not in part), Customer will be entitled to a refund of any prepaid but unused fees. Post-Termination Access to Customer Content. If Customer’s subscription to the Service is terminated other than by Penknife for cause, then Customer may retrieve Customer Content from the Service for 30 days beginning on the effective date of such termination (the “Transition Period”). If Customer retrieves Customer Content from the Service during the Transition Period, then Customer will be responsible for, and will have paid, all fees due under this TOS with respect to their Subscription Period and the Transition Period. This TOS will continue in full force and effect during the Transition Period solely to the extent necessary to allow Customer to retrieve Customer Content from the Service. Except to the extent expressly set forth in this Section, Penknife has no obligation to archive or make available Customer Content after expiration or termination of Customer’s subscription to the Service. Survival. The following provisions will survive expiration or termination of this TOS for any reason: Sections 1.2, 1.3, 2, 3, 5, 6, 7, 8.5, 8.6, 8.7, 9, 10, 11, 12, 13 and 14.
9. Limitation of Liability
EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS TOS OR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES RESULTING FROM A BREACH BY CUSTOMER OF ITS OBLIGATIONS UNDER SECTIONS 1.2 OR 1.3 OF THIS TOS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL THE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS ORDER FORM OR THE TERMS OF SERVICE INCLUDE (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID (OR, WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) BY CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO CUSTOMER’S CLAIM OR, IF NO FEES APPLY, $100 (THE “LIABILITY CAP”). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. THE FOREGOING DOES NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS TOS. PENKNIFE’S LICENSORS SHALL HAVE NO DIRECT OR INDIRECT LIABILITY TO CUSTOMER WITH REGARD TO THE SERVICE, Penknife TECHNOLOGY OR OTHERWISE UNDER THIS TOS.
10. Mutual Indemnification
Indemnification by Penknife. Penknife will defend Customer against any claim, demand or proceeding made or brought by a third party (“Third-Party Claim”) against Customer alleging that the Service, when used as authorized under this TOS, infringes any U.S. patent, copyright, or Trademark, and will indemnify Customer against any liability, direct damages, cost, loss or expense, including reasonable attorneys’ fees, incurred by or awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Penknife in writing of, any such Third-Party Claim against Customer. If Customer’s use of the Service is (or in Penknife’s opinion is likely to be) enjoined, if required by settlement or if Penknife determines such actions are reasonably necessary to avoid material liability, Penknife may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Service; or if (i) and (ii) are not commercially reasonable, (iii) terminate this TOS and Customer’s subscription to the Service. The foregoing indemnification obligation of Penknife will not apply to the extent the applicable claim is attributable to: (A) the modification of the Service by any party other than Penknife; (B) the combination of the Service with products or processes not provided by Penknife; (C) any unauthorized use of the Service; (D) any breach of the Agreement by Customer or its Authorized Users; (E) any subscription to or use of the Service for which no Fees are paid to Penknife; or (F) any action arising as a result of Customer Content or any third-party services, deliverables, integrations, open source software, or components contained within the Service. THIS SECTION SETS FORTH Penknife’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM DESCRIBED IN THIS SECTION. Indemnification by Customer. Customer will defend Penknife against any Third-Party Claim against Penknife (i) alleging that any Customer Content, any use by Customer of the Service or any Third-Party Service, or any product or service offered by Customer in connection with or through its use of the Service, infringes any U.S. patent, copyright or Trademark or (ii) arising from Customer’s use of the Services, Customer Content or any Third-Party Service in an unlawful manner or in violation of this TOS, the Documentation or any Order Form, and will indemnify Penknife against any liability, direct damages, cost, loss or expense, including reasonable attorneys’ fees awarded against Penknife as a result of, or for amounts paid by Penknife under a settlement approved by Customer in writing of, any such Third-Party Claim against Penknife. THIS SECTION SETS FORTH CUSTOMER’S SOLE LIABILITY AND Penknife’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM DESCRIBED IN THIS SECTION. Indemnification Procedures. In the event of any potential indemnity obligation under this Section 10, the indemnified party will (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 10 will not relieve the indemnifying party of its obligations under this Section 10; however, the indemnifying party will not liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section 10. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
11. Additional Limitations and Requirements
Third-Party Services. The Service enables linking between various online third-party services such as third-party email, cloud storage, social and similar services (“Third-Party Services”). To take advantage of these features and capabilities, Customer may be required to authenticate, register for, or log into Third-Party Services through the Service or on the websites of their respective providers. By linking Customer’s account on the Service to Customer’s account on a Third-Party Service, Customer is authorizing Penknife to access Customer’s Third-Party Service account (and any information, content, materials and features included therein) and use such Third-Party Service (with read and write privileges) on Customer’s behalf for the purpose of integrating the Service with such Third-Party Service. Customer’s use of the Third-Party Services is governed solely by the agreement between Customer and the provider of such Third-Party Service, and the Third-Party Services provider, and not Penknife, is solely responsible for such Third-Party Service. As between Customer and Penknife, Customer is solely responsible for securing and backing up data stored on Third-Party Services, including any data that is used to create or that is the basis of any Customer Content. The Service may provide, or third parties may provide, links or other access to third-party sites and resources on the internet (including Third-Party Services). Customer acknowledges and agrees that Penknife does not endorse such sites or resources and that Penknife will not be responsible or liable, directly or indirectly, for any damage or loss caused by Customer’s use of or reliance on any content, events, goods or services made available through any such Third-Party Service. Penknife DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY THIRD-PARTY SERVICE USED BY CUSTOMER. Federal Government Provisions. Penknife provides the Service, including related software and technology, for federal government end use solely in accordance with this Section 11.4. The Service includes “commercial items,” as defined at FAR 2.101. Use of the Service by the U.S. government is limited to the license rights expressly set forth in this TOS in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation). If a government agency needs additional rights not conveyed under this TOS, it must negotiate a mutually acceptable written addendum to this TOS specifically conveying such rights.
12. Dispute Resolution By Binding Arbitration
Most Customer concerns can be resolved quickly and to Customer’s satisfaction by emailing user support at support@penknife.app. In the unlikely event that the Penknife’ support team is unable to resolve a complaint Customer may have (or if Penknife has not been able to resolve a dispute) such disputes shall be addressed through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Penknife and Customer agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior agreements (including claims relating to advertising); claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and claims that may arise after the termination of this TOS. References to “Penknife” and “Customer” include their respective subsidiaries, affiliates, agents, directors, officers, employees, contractors, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between Penknife and Customer. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude Customer from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against Penknife on Customer’s behalf. Customer agrees that, by entering into this TOS, Customer and Penknife are each waiving the right to a trial by jury or to participate in a class action. This TOS evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Penknife should be addressed to 314e Corporation, Attention: 7172 Regional St #319 Dublin, CA 94568-2324, USA (“Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If Penknife and Customer do not reach an agreement to resolve the claim within 60 calendar days after the Notice is received, Customer or Penknife may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Penknife or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Penknife is entitled. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless Penknife and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Customer’s claim is for $10,000 or less, Penknife agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Penknife will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if Customer initiates an arbitration in which Customer seeks more than $75,000 in damages, the payment of these fees will be governed by the AAA Rules. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. CUSTOMER AND PENKNIFE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Penknife agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. Notwithstanding any provision in this TOS to the contrary, Penknife agrees that if Penknife makes any future change to this arbitration provision (other than a change to the Arbitration Notice address) while Customer is a user of the Service, Customer may reject any such change by sending Penknife written notice within 30 calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, Customer is agreeing that Customer will arbitrate any dispute between us in accordance with the language of this provision.
13. Miscellaneous
MODIFICATIONS. Penknife MAY CHANGE THIS TOS FROM TIME TO TIME. IF Penknife DOES THIS, Penknife WILL INDICATE IN TEXT APPENDED TO THIS PAGE THE DATE THIS TOS WAS LAST REVISED AND, IF APPLICABLE, Penknife WILL POST THE MATERIAL CHANGES TO THIS TOS ON THIS PAGE. Penknife WILL ALSO USE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY CUSTOMER, EITHER THROUGH THE SERVICE USER INTERFACE, IN AN EMAIL NOTIFICATION TO THE ACCOUNT ADMINISTRATOR EMAIL PROVIDED BY CUSTOMER IN CONNECTION WITH THE SERVICE, OR THROUGH OTHER REASONABLE MEANS. ANY SUCH CHANGES WILL BECOME EFFECTIVE UPON THE EARLIER OF (A) CUSTOMER’S USE OF THE SITE AND/OR SERVICE WITH ACTUAL KNOWLEDGE OF THE CHANGE, OR (B) 15 DAYS AFTER CHANGES ARE POSTED. CUSTOMER’S CONTINUED USE OF THE SERVICE AFTER THE DATE ANY SUCH CHANGES BECOME EFFECTIVE CONSTITUTES CUSTOMER’S ACCEPTANCE OF THE NEW TOS, PROVIDED THAT DISPUTES ARISING UNDER THIS TOS WILL BE RESOLVED IN ACCORDANCE WITH THE TOS IN PLACE AT THE TIME THE FACTS GIVING RISE TO THE DISPUTE OCCURRED. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES (I) THAT CUSTOMER IS AGREEING TO ARBITRATE DISPUTES ARISING HEREUNDER (AS DESCRIBED IN FURTHER DETAIL IN SECTION 12), AND THAT THE TERMS OF THE ARBITRATION AGREEMENT WILL NOT BE MODIFIED EXCEPT AS PROVIDED FOR IN SECTION 12 AND (II) THAT Penknife MAY MODIFY THE SAFEGUARDS FROM TIME TO TIME BUT SHALL NOT MATERIALLY REDUCE THE OVERALL EFFECTIVENESS OF THE SAFEGUARDS WITHOUT CUSTOMER’S CONSENT. Assignment. Customer will not assign or transfer this TOS, except that Customer may assign this TOS by reason of merger, reorganization, sale of all or substantially all of Customer’s assets, change of control or operation of law, provided that such successor is not a competitor of Penknife. Penknife may assign this TOS to any affiliate or in the event of merger, reorganization, sale of all or substantially all of Penknife’s assets, change of control or operation of law. Governing Law; Venue; Survival of Claims. This TOS will be governed by the laws of the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Each party expressly agrees to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action by or belonging to Customer arising out of or related to use of the Service or this TOS must be filed within 12 months after such claim or cause of action arose or be forever barred. The prevailing party in any dispute hereunder will be entitled to recover from the other party its costs, expenses, and reasonable attorney fees (including any reasonable fees of expert witnesses, paralegals and other legal services providers). Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this TOS if such delay is caused by a labor dispute, criminal acts of third parties, shortage of materials, fire, earthquake, flood, telecommunications outage not caused by the obligate party, or any other event beyond the reasonable control of such party. Entire Agreement. This TOS, together with any related Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, including (i) any non-disclosure or confidentiality agreement between Customer and Penknife and (ii) any trial agreement entered into between Customer and Penknife for access to the Service. To the extent of any conflict or inconsistency between the provisions in the body of this TOS and any Order Form, the terms of such Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or other order documentation submitted by Customer (excluding Order Forms) will be incorporated into or form any part of this TOS, and all such terms or conditions will be null and void. Customer must comply with applicable third party terms of agreement when using the Service. Notice. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Penknife: Penknife CRM, Inc., Attention: Customer Success, Regional St #319 Dublin, CA 94568-2324, USA; provided that any claim for indemnification by Penknife will be addressed to: Penknife CRM, Inc., Attention: Regional St #319 Dublin, CA 94568-2324, USA
To Customer: Customer’s address as provided in Penknife’s account information for Customer.
Penknife may give electronic notices by general notice via the Service and may give electronic notices specific to Customer by email to Customer’s e-mail address(es) on record in Penknife’s account information for Customer or through the notifications center of the Service. Penknife may give notice to Customer by means of telephone at the telephone numbers on record in Penknife’s account information. Customer agrees to keep all of Customer’s account information current. Section Headings. Section headings in this TOS are for reference purposes only, and do not modify, limit or expand any of the terms and conditions set forth in this TOS. Transparency in Coverage. This link leads to the machine-readable files that are made available in response to the federal Transparency in Coverage Rule and includes negotiated service rates and out-of-network allowed amounts between health plans and healthcare providers. The machine readable files are formatted to allow researchers, regulators, and application developers to more easily access and analyze data.
14. Definitions
“AAA” is used as defined in Section 12.7.
“AAA Rules” is used as defined in Section 12.7.
“Applicable Data Protection Laws” means the General Data Protection Regulation 2016/679 (“GDPR”) and UK Data Protection Act 2018 (“DPA 2018”), the California Consumer Privacy Act of 2018 (“CCPA”), Colorado SB-21-190 and the Virginia Consumer Data Protection Act.
“Applicable Law” means all applicable local, state, national, foreign or international rules, regulations and laws.
“Arbitration Notice Address” is used as defined in Section 12.6.
“Authorized Users” means the individuals authorized to access and use the Service under Customer’s subscription in accordance with this TOS.
“Business Day” means a day other than Saturday, Sunday or a U.S. federal holiday.
“Confidential Information” means information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this TOS that is marked or identified as “confidential” or “proprietary” or under the circumstances that a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Customer includes Customer Content. Confidential Information of Penknife includes the terms and conditions of any Order Form. Confidential Information does not include information that is (i) in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party, (ii) rightfully in the receiving party’s possession without restriction prior to disclosure, (iii) rightfully disclosed to the receiving party by a third party without restriction, (iv) independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information or (v) in the case of Customer’s Confidential Information, Service Data to the extent that such information does not contain any personally identifiable or Customer-specific information.
“Penknife Technology” means the Site and Service and any and all related and underlying technology, including technology licensed by Penknife and incorporated into Penknife’s customer relationship management services and related technologies, and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback.
“Customer Content” means all data, data files and other information that is uploaded, submitted or published, transmitted or stored by or on behalf of Customer in connection with Customer’s use of the Service. Customer Content does not include Service Data.
“Customer Personal Information” means Customer Content that is Personal Information.
“Data Protection Addendum” means Penknife’s standard Data Protection Addendum referenced Section 4.4.
“Demand” is used as defined in Section 12.4.
“Documentation” means the technical documentation made available by Penknife to Authorized Users for the purpose of operating the Service, as may be substituted or updated from time to time, but excluding any marketing information and forward-looking information concerning future releases and features.
“Feedback” means all suggestions, enhancement requests, recommendations, proposals, corrections or other feedback provided by Customer or any Authorized User related to the operation, contents or functionality of any Penknife Technology.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder.
“include” or “including” and similar expressions mean “including, but not limited to”.
“Intellectual Property Rights” means patent, copyright, Trademark, trade secret and other intellectual property rights.
“Liability Cap” is used as defined in Section 9.
“Marketing Activities” is used as defined in Section 3.4.
“Notice” is used as defined in Section 12.6.
“Order Form” means the ordering document(s) executed and delivered by Customer and Penknife or electronic order confirmation delivered by Penknife and accepted by Customer referencing this TOS and specifying certain terms and conditions of the Service.
“Personal Information” means (i) any information about an identified or identifiable individual and (ii) information that is not specifically about an identified or identifiable individual but, when combined with other information, may identify an individual.
“Process” or “Processing” means to create, collect, receive, acquire, record, consult, alter, use, process, store, retrieve, maintain, disclose, or dispose of data or sets of data, whether or not by automated means.
“Reseller” means, if applicable, the authorized non-affiliate third party reseller that sells the Service to Customer.
“Reseller Agreement” means the separate agreement between Customer and Reseller regarding the Service. The Reseller Agreement is independent of and outside the scope of this TOS.
“Safeguards” is used as defined in Section 4.1.
“Sensitive Information” means payment card information, including credit card numbers and debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, drivers license numbers and passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws, including Protected Health Information, as defined by HIPAA), personal information of children protected under any child data privacy or protection laws, any other information or combinations of information, or any other sensitive or special Personal Information that imposes specific data security, data residency or data protection obligations on Penknife other than those expressly provided for in the Data Protect Addendum. Special categories of data include personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; genetic data and biometric data processed for the purpose of uniquely identifying a natural person; data concerning health or a person’s sex life or sexual orientation; data relating to criminal convictions and offenses.
“Service” means the Penknife customer relationship management services and related technologies, including technology licensed by Penknife and incorporated into Penknife’s customer relationship management services and related technologies. Service does not include Third-Party Services.
“Service Data” means query logs and other information about Customer’s use of the Service. Service Data is not Customer Content.
“Site” means website or mobile application by means of which Customer may access the Service.
“Subscription Term” means the duration of Customer’s authorized access to the Service.
“Taxes” means all local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use and withholding taxes.
“Third-Party Services” is used as defined in Section 11.1.
“Third-Party Claim” is used as defined in Section 10.1.
“Trademark” means all rights in and to U.S. and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
“Transition Period” is used as defined in Section 8.6.