1.1 “Agreement” means these Terms and Conditions together with any Change Forms(s) in effect from time to time.
1.2 “Applicable Laws” means all applicable present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes and executive orders of any governmental or judicial authorities.
1.3 “Customer Information” means certain information pertaining to the Debt portfolio comprising or derived from Customer Input or Customer Output in connection with the provision of the Services to Customer.
1.4 “Authorized Customer” means an employee or contractor of Customer who has been designated by Customer, on notice to Pistachio Financier, to receive unique login credentials permitting access to the Services.
1.5 “Customer Input” means any data or other information that Customer provides to Pistachio Financier directly or an Authorized Customer enters or uploads via the Services.
1.6 “Customer Output” means any data, reports or other information based on or incorporating Customer Input that are displayed or generated for Customer by means of the Services.
1.7 “Customer” means the Customer specified on the first page hereof.
1.8 “Confidential Information” has the meaning set forth in Section 7 hereof.
1.9 “Developments” means the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing the Services hereunder, including any derivative works, improvements, enhancements and/or extensions made to the Services.
1.10 “Documentation” means any documentation made available to Customer by Pistachio Financier for use with the Services.
1.11 “Fees” means the fees payable by Customer to Pistachio Financier hereunder, as set forth on the applicable Change Form.
1.12 “Force Majeure” has the meaning set forth in Section 11.8 hereof.
1.13 “including” means “including without limitation.”
1.14 “Initial Term” has the meaning set forth in Section 6 hereof.
1.15 “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now or hereafter exist, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1.16 “Party” means either Pistachio Financier or Customer, and “Parties” means both Pistachio Financier and Customer.
1.17 “Renewal Term” has the meaning set forth in Section 6 hereof.
1.18 “Services” means the product(s) or service(s) to be made available by Pistachio Financier to Customer hereunder, as specified on the applicable Change Form, together with any Upgrades.
1.19 “Term” has the meaning set forth in Section 6 hereof.
1.20 “Terms and Conditions” has the meaning set forth on the cover page hereof.
1.21 “Upgrades” means, with respect to the Services, fixes, updates, enhancements or upgrades thereto; provided, however, that “Upgrades” shall not include additional modules for the Services, or new products or services, which Pistachio Financier may make available from time to time.
2.1 Services. Subject to the provisions of the Agreement, including Customer’s payment of all Fees then due and payable under the applicable Change Form, Pistachio Financier grants Customer a one time use only non-exclusive, non-transferable, non-sublicenseable license during the Term to permit access to, and use of, the Services by Authorized Customers solely for Customer’s internal business purposes. Pistachio Financier reserves all rights not expressly granted under the Agreement. Pistachio Financier shall use commercially reasonable efforts (i) to maintain the availability of the Services, subject to downtime by reason of Force Majeure or for the purpose of performing maintenance or implementing upgrades or modifications; and (ii) to respond within a reasonable time to Customer’s reasonable requests for support or Customer’s identification of any material errors or defects in the Services.
CUSTOMER OBLIGATIONS. Customer is responsible for the activity that occurs under its account, and Customer agrees to use strong passwords and otherwise maintain the security of its account to ensure that all such activity complies with the provisions hereof. Customer shall notify Pistachio Financier immediately of any breach of security or unauthorized use of Customer’s account. Pistachio Financier will not be liable for any losses caused by unauthorized use of Customer’s account. Customer shall ensure that its Authorized Customers comply with the provisions of the Agreement applicable to use of the Services. Customer shall be liable for any and all use of and access to the Services by any Authorized Customers. Customer shall not, directly or indirectly, nor shall Customer permit any Authorized Customer to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (ii) modify or create derivative works based on the Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer Customer’s rights to use the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) use the Services to develop any similar service for use by others; (vi) use the Services and any Customer Input or Customer Output in violation of any Applicable Laws or third party rights; (vii) introduce any viruses, worms, malware or other destructive code into the Services; or (viii) bypass any measures Pistachio Financier uses to restrict access to the Services. Customer represents, warrants and covenants that it: (i) has all necessary rights to provide the Customer Input for use by Pistachio Financier in providing the Services and producing the Customer Output without violating any fiduciary duty, duty of confidentiality, contractual obligation or Applicable Laws; (ii) Pistachio Financier’s use of the Customer Input as contemplated by the Agreement will not violate any Applicable Laws, Intellectual Property Right or other third party right; (iii) will not use the Services or the Customer Output for illegal, fraudulent, or unethical purposes or otherwise in a manner that could give rise to civil or criminal liability; and (iv) will not interfere with or impede the ability of others to use the Services. Customer is solely responsible, on behalf of itself and the Authorized Customers, for the Customer Input and its use of the Customer Output. Customer shall promptly notify Pistachio Financier if it becomes aware that the Services are being used for any illegal or unauthorized purpose.
3. PROPRIETARY RIGHTS.
3.1 Customer Proprietary Rights. As between Customer and Pistachio Financier, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Customer Input; (ii) the Customer Output; (iii) the Customer Information; and (iv) its Confidential Information. Customer grants Pistachio Financier and its service providers a non-exclusive, royalty-free license during the Term to store, use, modify, distribute, copy and make derivative works from the Customer Input solely to provide the Services for the benefit of Customer and its Authorized Customers, including to generate Customer Output. Customer grants Pistachio Financier the right to use Customer’s trade names, trademarks or logos in presentations, marketing materials, Customer lists, financial reports and website listings for the purpose of promoting the Services and/or Pistachio Financier.
3.2 Pistachio Financier Proprietary Rights. As between Customer and Pistachio Financier, Pistachio Financier owns all right, title and interest, including all Intellectual Property Rights, in and to (i) the Services (including all software, code, data, interfaces, processes, images, graphics, text or other materials contained therein); (ii) the Developments; (iii) the Documentation; (iv) any reports that Pistachio Financier produces hereunder; and (v) its Confidential Information.
4. SECURITY. Pistachio Financier uses physical, managerial, and technical safeguards for the purpose of preserving the integrity and security of Customer Input and Customer Output. Customer acknowledges that, notwithstanding such security precautions, use of the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services as well as data stored by Pistachio Financier. Accordingly, Pistachio Financier does not guarantee the privacy, security, integrity or authenticity of any information so transmitted over or stored in any system connected to the Internet or that any such security precautions will be adequate.
5.1 Fees. Customer shall pay Pistachio Financier the Fees set forth in 5 business days following the date of invoice (if not paid out of deal funding proceeds) and otherwise in accordance with the payment terms set forth therein.
If Customer does not pay an invoice within five (5) days after receipt of a written notice from Pistachio Financier that such payment is overdue, Customer shall pay interest to Pistachio Financier at the rate of the lesser of one and one-half percent (11/2%) per month, or the maximum rate allowed by Applicable Laws. If Customer withholds payment, Pistachio Financier may, without limitation of its other rights or remedies, suspend performance under the applicable Change Form until the payment is made. All Fees are payable in Canadian dollars.
5.2 Taxes. Fees are exclusive of all taxes, levies or duties, and Customer will be responsible for payment of such taxes, levies or duties, excluding only taxes based on Pistachio Financier’s net income. If Pistachio Financier has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 6.2, Pistachio Financier will invoice the amount of such taxes to Customer, and Customer agrees to pay such amount, unless Customer provides Pistachio Financier with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. TERM; TERMINATION.
6.1 Term. These Terms and Conditions shall remain in effect for the term outlaid in this contract.
6.2 Effect of Termination. Upon the expiration of these Terms and Conditions for any reason, any outstanding Change Form(s) shall simultaneously terminate. Sections 1, 3, 5, 7 and 8-12 of these Terms and Conditions shall survive its expiration or termination for any reason. Any outstanding balance through the date of termination shall immediately become due and payable in full. If Customer gives notice to Pistachio Financier requesting the delivery of any Customer Input within thirty (30) days of the termination or expiration of the applicable Change Form, Pistachio Financier will provide Customer with such Customer Input, if, in Pistachio Financier’s possession or control within ninety (90) days of receiving the request.
7. CONFIDENTIALITY. Each of the Parties agrees to maintain in confidence any information disclosed to it by the other Party which is designated as “Confidential,” “Proprietary” or some similar designation, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure (“Confidential Information”). Without limitation of the foregoing, Customer’s Confidential Information shall include the Customer Input, the Customer Output and the Customer Information, and Pistachio Financier’s Confidential Information shall include all of the technology employed by Pistachio Financier in providing the Services. The receiving Party shall not disclose the other Party’s Confidential Information to any third party except for the purpose of performing its obligations or exercising its rights under the Agreement. Each Party shall use commercially reasonable efforts to protect the Confidential Information of the other Party and such Party’s’ respective rights therein, at all times exercising at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, which shall be at least a reasonable degree of care. Each Party agrees to restrict access to the Confidential Information of the other Party to those employees, contractors or agents who require access in Change to perform hereunder. Confidential Information shall not include any information that is (i) already rightfully known to the receiving Party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving Party; (iii) subsequently disclosed to the receiving Party on a non-confidential basis by a third party not having a confidential relationship with the other Party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving Party with the express written consent of the disclosing Party. Notwithstanding anything to the contrary contained herein, aggregated data of multiple Pistachio Financier Customers, including data related to the Agreement and the Services, which does not identify, and cannot reasonably be attributed to, Customer or any Authorized Customers (the “Aggregated Anonymous Data”), shall not be deemed Confidential Information hereunder, and Pistachio Financier shall have the right to reproduce, distribute and otherwise use such aggregated anonymous data in connection with its business. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, Change or other judicial or governmental process shall not be considered a breach of the Agreement; provided the receiving Party uses commercially reasonable efforts to provide prompt notice of any such subpoena, Change, or the like to the disclosing Party so that the disclosing Party will have the opportunity to obtain a protective Change or otherwise oppose the disclosure. Upon expiration or termination of the Agreement, the receiving Party shall, upon request of the disclosing Party, return to the disclosing Party, or destroy (with written certification of the same), all copies of the disclosing Party’s Confidential Information, except for archival and back-up copies on back-up tapes and if, and to the extent, the receiving Party is required to retain such material under Applicable Laws.
8. WARRANTY DISCLAIMER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PISTACHIO FINANCIER EXPRESSLY DISCLAIMS ALL, AND MAKES NO, WARRANTIES OF ANY KIND (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE SERVICES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PISTACHIO FINANCIER DOES NOT WARRANT THAT THE SERVICES OR THE CUSTOMER OUTPUT WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, THAT THE CUSTOMER OUTPUT WILL BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
9.1 By Pistachio Financier. Pistachio Financier shall indemnify, defend and hold harmless Customer and its officers, directors, employees and agents from any and all damages, liabilities, and reasonable costs or expenses, including reasonable attorneys’ fees, resulting from any third party claim that the Services, as used in accordance with the Agreement, infringe upon any third party Intellectual Property Rights. Notwithstanding anything to the contrary contained herein, the indemnification and other obligations of Pistachio Financier in this Section 10 shall not apply with respect to any claim related to any of the Customer Property, any use of the Services in a manner that does not comply with the provisions of the Agreement, any negligence or willful misconduct by Customer or any Authorized Customers, or any combination of the Services with any software, hardware, data or other materials not provided by Pistachio Financier to Customer for use in connection with the Services. If a claim is made against an Indemnitee that is subject to indemnification under this Section 10.1, Pistachio Financier shall either: (a) obtain for Customer the right to continue to use the Services which are the subject of the claim; or (b) modify or replace the Services with a non-infringing substitute that provides substantially the same performance and functionality of the original Services; provided, however, that if Pistachio Financier reasonably determines that it is not commercially practicable to effectuate the actions described in the foregoing clauses (a) or (b), Pistachio Financier shall have the right to terminate the Agreement, in which case it shall provide Customer with a refund of any prepaid sums with respect to the balance of the Term. This Section sets forth Customer’s sole remedy, and Pistachio Financier’s sole liability, in connection with claims of infringement.
9.2 By Customer. Customer shall indemnify, defend and hold harmless Pistachio Financier and its officers, directors, employees and agents from any and all lawsuits, damages, liabilities, costs, charges, and expenses, including reasonable attorneys’ fees, resulting from any third party claim (i) related to the Customer Input or Customer Output, the use thereof, or any transactions related thereto or (ii) arising out of any act or omission of Customer or its Authorized Customers that constitutes a breach of any of Customer’s covenants, representations, warranties or obligations hereunder.
9.3 Process. With respect to any claims brought by any third party against an indemnified party hereunder, the indemnified party shall promptly advise the indemnifying Party of any such claim, although failure to provide such notice shall not relieve the indemnifying Party from its obligations hereunder except to the extent of any material prejudice resulting therefrom; the indemnified party shall give the indemnifying Party the sole discretion and control to defend, compromise or settle the claim as the indemnifying Party may, in its sole discretion, determine appropriate, except that the indemnifying Party shall not settle any such claim that adversely affects the indemnified party’s rights or interests without first obtaining the written consent of the indemnified party; and the indemnified party shall reasonably cooperate with the indemnifying Party. The indemnifying Party shall keep the indemnified party informed of the progress of any claim it is defending and shall consult with the indemnified party prior to any settlement or compromise. The indemnified party shall have the right to participate in the defense or settlement of any such claim with counsel of its own choosing at its own expense.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SERVICE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PISTACHIO FINANCIER’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PISTACHIO FINANCIER HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LAST CAUSE OF ACTION AROSE. THESE LIMITATIONS ARE INTEGRAL TO THE CALCULATION OF FEES IN CONNECTION WITH THE PROVISION OF THE SERVICE.
11.1 Notices. All notices or reports permitted or required under the Agreement shall be in writing and shall be delivered in person, mailed by first class mail, postage prepaid, (registered or certified) or by overnight courier, to the Party to receive the notice. Notices to Customer shall be sent to the address set forth on the Change Form. Notices to Pistachio Financier shall be sent to Pistachio Financier Corp.,
A Party may change its address for notices by delivery of notice to the other Party in accordance herewith. Notices shall be effective upon receipt.
11.2 Assignment. Neither Party may assign the Agreement, these Terms and Conditions or any Change Form, in whole or in part, without the other Party’s prior written consent, not to be unreasonably withheld;
11.3 this relationship is solely that of independent contractors, and the Agreement will not establish any partnership, joint venture, employment, franchise or agency between Pistachio Financier and Customer. Neither Pistachio Financier nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
11.4 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
11.5 Governing Law; Venue. This Agreement shall be governed by the laws of the Province of Ontario, excluding its conflict of laws rules. The Parties consent to the personal and exclusive jurisdiction of these courts. The United Nations Convention for the International Sale of Goods is excluded in its entirety from the Agreement.
11.6 Waiver. Any waiver of the provisions of the Agreement or of a Party’s rights or remedies under the Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of the Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such Party’s rights under the Agreement and will not in any way affect the validity of the whole or any part of the Agreement or prejudice such Party’s right to take subsequent action. Except as expressly stated in the Agreement, no exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under the Agreement or that such Party is entitled by law to enforce.
11.7 Severability. If any provision of the Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the Parties shall negotiate in good faith amendments to the Agreement to reflect the original intent of the Parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by Applicable laws.
11.8 Force Majeure. Neither Party shall be in default if its failure to perform or delay in performing any obligation under the Agreement (other than payment obligations) is caused by supervening conditions beyond that Party’s reasonable control (“Force Majeure”), including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.
11.9 Entire Agreement. This Agreement, comprising the first page hereof, these Terms and Conditions and any Change Form(s), each of which shall be deemed incorporated into and made a part hereof, constitutes the entire agreement and supersedes all prior agreements and understandings between the Parties relating to the subject matter hereof. Except in the case of a change in the users subject to a Change Form, which may be modified as provided herein, this Agreement may not be amended, except by a writing signed by both Parties.