This Software as a Service Agreement (“Agreement”) is a legal document between Paccurate, LLC (“Paccurate”) and the company with whom you are employed or engaged and on whose behalf you are accepting the terms of this Agreement ( “Customer”). Please do not use the services if you do not have the authority to accept this Agreement on Customer’s behalf and bind the Customer to the terms of this Agreement. By creating an account, you are accepting the terms of this Agreement on behalf of Customer and that by accepting this Agreement; you are creating a legally binding contract between Paccurate and Customer. Paccurate and Customer may be referred to in the Agreement collectively as the “Parties” or individually as a “Party”.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Paccurate in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) "Documentation" means Paccurate's user manuals, handbooks, and guides relating to the Services provided by Paccurate to Customer either electronically or in hard copy form relating to the Services.
(e) “Effective Date” means the date on which this Agreement has been accepted by or on behalf of Customer.
(f) "Paccurate IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Paccurate IP includes Aggregated Statistics and any information, data, or other content derived from Paccurate's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(g) "Services" means Paccurate’s software-as-a-service offering described in Exhibit A.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of this Agreement, Paccurate hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Paccurate shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Paccurate hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Paccurate reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Paccurate IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Paccurate may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Paccurate reasonably determines that (A) there is a threat or attack on any of the Paccurate IP; (B) Customer's or any Authorized User's use of the Paccurate IP disrupts or poses a security risk to the Paccurate IP or to any other customer or vendor of Paccurate; (C) Customer, or any Authorized User, is using the Paccurate IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Paccurate's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Paccurate has suspended or terminated Paccurate's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Paccurate shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Paccurate shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Paccurate will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Paccurate may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Paccurate and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Paccurate. Customer acknowledges that Paccurate may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Paccurate may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer and its Authorized Users shall not use the Services in connection with the shipment of prohibited, hazardous, or dangerous goods. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Paccurate shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit B.
(b) Support. This Agreement does not entitle Customer to any support for the Services.
(a) Fees. Customer shall pay Paccurate the fees ("Fees") as set forth in Exhibit A without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Customer fails to make any payment when due, without limiting Paccurate's other rights and remedies: (i) Paccurate may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Paccurate for all costs incurred by Paccurate in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Paccurate may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Paccurate's income.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(a) Paccurate IP. Customer acknowledges that, as between Customer and Paccurate, Paccurate owns all right, title, and interest, including all intellectual property rights, in and to the Paccurate IP.
(b) Customer Data. Paccurate acknowledges that, as between Paccurate and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Paccurate a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Paccurate to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Paccurate by mail, email, telephone, or otherwise, suggesting or recommending changes to the Paccurate IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Paccurate is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Paccurate on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Paccurate is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Paccurate is not required to use any Feedback.
(a) Paccurate warrants that the Services will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Paccurate does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit B. The remedies set forth in Exhibit B are Customer's sole remedies and Paccurate's sole liability under the limited warranty set forth in this Section 8(a).
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a),THE PACCURATE IP IS PROVIDED "AS IS" AND PACCURATE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PACCURATE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), PACCURATE MAKES NO WARRANTY OF ANY KIND THAT THE PACCURATE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) Paccurate Indemnification.
(i) Paccurate shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Customer promptly notifies Paccurate in writing of the claim, cooperates with Paccurate, and allows Paccurate sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Paccurate, at Paccurate's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Paccurate determines that neither alternative is reasonably available, Paccurate may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Paccurate or authorized by Paccurate in writing; (B) modifications to the Services not made by Paccurate; or (C) Customer Data.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Paccurate's option, defend Paccurate from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Paccurate or authorized by Paccurate in writing; (iv) violation of any law or regulation; (v) modifications to the Services not made by Paccurate, or (vi) the use of the Services in connection with the shipment of prohibited, hazardous or dangerous goods , provided that Customer may not settle any Third-Party Claim against Paccurate unless Paccurate consents to such settlement, and further provided that Paccurate will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PACCURATE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
IN NO EVENT WILL PACCURATE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PACCURATE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PACCURATE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PACCURATE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT IN RESPECT OF WHICH PACCURATE INCURS LIABILITY TO CUSTOMER.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until the expiration date set forth in the Services ordering document between the parties (the "InitialTerm"). This Agreement will automatically renew for additional successive one year terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least twenty (20) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"). The pricing applicable in any Renewal Term will remain the same as the pricing applicable to the prior term unless Paccurate has notified Customer in writing no less than thirty (30) days prior to the end of the then current term of any price changes that will be effective commencing on the first day of the upcoming Renewal Term. Such price changes shall take effect on the first day of the upcoming Renewal Term unless Customer has timely terminated this Agreement in accordance with this Section 11(a).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Paccurate may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) after Paccurate's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Paccurate IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Paccurate IP and certify in writing to Paccurate that the Paccurate IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Paccurate, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
The Services consist of a software as a service (SaaS) cartonization and shipping platform referred to as “Paccurate”(not to be confused with the defined term “Paccurate” in this Agreement referring to Paccurate LLC, the provider of the Paccurate SaaS platform) designed to enable customers to reduce product shipping costs and packaging waste by advising customers on the optimal way to pack and ship customers’ goods.
Paccurate will invoice Customer monthly in arrears. Monthly charges are based on the number of cartonization/shipping advice requests (“Requests”) submitted to the Services by the Customer and its Authorized Users via the Services’ API in the monthly period coved by the invoice. A single Request may be made multiple times but only charged once within the same billing period, so long as Paccurate’s billing system is able to identify subsequent Requests as identical or similar to previous Requests. To determine whether a Request matches previous a previous Request, Paccurate’s billing system keeps track of various data such as the SKUs and/or items being cartonized. Paccurate makes a good faith effort to recognize unique Requests but makes no guarantee that every Request will be correctly categorized or flagged as being a previously made API call. Customer shall notify Paccurate within thirty (30) days of receiving an invoice if it believes that a single unique Request to the Services made multiple times has been charged more than once in the covered billing period, and the Parties agree to resolve the billing issue in good faith. Customer shall pay all Paccurate invoices with thirty (30) days of the invoice date.
The minimum monthly charge to Customer for the use of the Services is $25, which includes 250 unique Requests to the Services by Customer. Additional requests over the 250 will be invoiced based on the following discount schedule.
Monthly Unique Requests over 250 Unique Requests
Fee Per Unique Request
Paccurate will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage, as described below, during any monthly billing cycle (the “Service Commitment”). In the event Paccurate does not meet the Service Commitment, subject to the terms below, Customer will be eligible to receive a Service Credit as described below.
The “Monthly Uptime Percentage” is calculated by subtracting from 100% the average of the Error Rates from each 5-minute interval in the monthly billing cycle. If Subscriber did not make any requests in a given 5-minute interval, that interval is assumed to have a 0% Error Rate.
The “Error Rate” means: (i) the total number of internal server errors returned by Paccurate as error status “InternalError” or “ServiceUnavailable” divided by (ii) the total number of Requests for the applicable Request type during that 5-minute interval. Paccurate will calculate the Error Rate for each Paccurate account as a percentage for each 5-minute interval in the monthly billing cycle. The calculation of the number of internal server errors will not include errors that arise directly or indirectly as a result of any of the Exclusions as set forth below.
A “Service Credit” is a dollar credit, calculated as set forth below, that Paccurate may credit back to an eligible Customer account.
Service Credits are calculated as a percentage of the total charges paid by Customer for the Services for the billing cycle in which the Monthly Uptime Percentage fell within the ranges set forth in the table below.
Monthly Uptime Percentage
Service Credit Percentage
Less than 99.0% but greater than 95.0%
95.0% or less, but greater than 90.0%
90% or less
The Service Commitment does not apply to any unavailability, suspension or termination of the Services, or any other Services issues: (i) caused by factors outside of Paccurate’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Paccurate; (ii) that result from any actions or inactions of Customer or any third party; (iii) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Paccurate’s direct control); or (iv) arising from Paccurates suspension or termination of Customer’s right to use Paccurate in accordance with the terms of this Agreement. If availability is impacted by factors other than those used in Paccurate’s calculation of the Monthly Uptime Percentage, then Paccurate may issue a Service Credit considering such factors at Paccurate’s discretion.