Please review these terms (the “Agreement”) carefully. Wherever used in this Agreement, “you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Enterprise Services. For the avoidance of doubt, if you are accessing and using the Enterprise Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity that you are using the Enterprise Services on behalf of. By purchasing, accessing or using the Enterprise Services offered by Permeateq Digital Labz Ltd (“Permeateq”, “we”, “us”, or “our”), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time in accordance with this Agreement. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://www.permeateq.com/legal/enterprise-terms. By purchasing, accessing or using the Enterprise Services, or procuring any product or service, such as but not limited to, software development, data recovery, system support and maintenance from Permeateq, whether or not you have made any payments or a duly executed Service Level Agreement between you and Permeateq exists, you confirm that:
A. You will only use our Enterprise Services for business and professional reasons (the Enterprise Services are not for use by consumers and may only be used for business and professional purposes);
B. You accept, are legally bound, and will comply with this Agreement; and
C. You are responsible for anyone that uses our Enterprise Services through your account (“Authorized Users”), which may include your employees, consultants or contractors, or the employees, consultants or contractors of your Affiliates.
If you are a marketing agency or similar organization and provide access to our Enterprise Services to any of your clients or their employees, they are also your Authorized Users.
(a) We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.
“System Support and Maintenance” is a package permeateq provides to our clients where we provide an advanced software, services, products at ⅓ the actual cost of the software provided the client pays a monthly or annual system support and maintenance fee as described in the service level agreement/contract provided to the client. Where the client wishes to support themselves through their in house team, the client must pay the remaining ⅔ cost of the software or service or product(s).
“Affiliates” are companies or entities that either you or we own, that own either you or us, or that have the same owner or corporate parent as either you or us, as applicable;
“Content” is a generic term that means all information and data (such as text, images, photos, videos, audio and documents) in any format that is uploaded to, downloaded from or appears on our Enterprise Services;
“Ads Content” is Customer Content that you or your Authorized Users provide in connection with your creation, posting, or management of paid advertisements on Facebook, Instagram, or any other applicable Social Network;
“Customer Content” is Content that you or your Authorized Users provide to us or upload to our Enterprise Services;
“Mentions” are the Content that a third party (in other words, someone other than you, an Authorized User or Permeateq) creates and that we obtain on your behalf and at your instruction from Social Networks or other Third-Party Services that you connect to our Enterprise Services. For example, posts created by followers that appear on your Facebook page would be considered Mentions;
“Messaging Content” is Submitted Content and Customer Content to the extent it is included only in private text messages (including sent through messaging services, such as WhatsApp and WeChat) and private direct messages sent through Social Networks, sent to and from Customer, including by Authorized Users;
“Submitted Content” is Content you ask people to submit through the Enterprise Services, such as in connection with contests or as Messaging Content;
“Enterprise Services” means services included in Permeateq’s Enterprise or Business plans, any other Permeateq products or services made available to you through a Service Level Agreement, and any Permeateq Apps (as defined in the App Directory Terms) accessed through the Permeateq App Directory, but does not include:
i) Permeateq’s Self-Serve Services; or
ii) any Third-Party Services; “Third-Party Services” are services that are not provided by Permeateq that you may access or use in connection with our Enterprise Services. They include: “Social Networks”, which are the social networking sites and/or messaging platforms supported by our Enterprise Services (such as Twitter, Facebook, LinkedIn, Instagram, Pinterest, TikTok, YouTube, and WhatsApp); “Partner Services”, which are services offered by third-parties and resold by Permeateq as an authorized reseller; and services accessible through the extensions and applications available in the Permeateq App Directory (https://apps.permeateq.com).
(b) Headings used in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
2. Permeateq’s Responsibilities
2.1 Enterprise Services. During the Term, subject to the terms and conditions of this Agreement, we will make the Enterprise Services available to you in accordance with the applicable Service Level Agreement entered and executed or as otherwise agreed between you and Permeateq.
2.2 Updates. Our Enterprise Services evolve constantly. So long as we do not breach the warranty set out in this Agreement, we may change our Enterprise Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.
2.3 Social Networks. Our Enterprise Services interact with Social Networks and depend on the availability of those Social Networks and the features and functionality they make available to us, which we do not control and may change without notice. If at any time a Social Network stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by Permeateq in its sole discretion (eg an “API Change”), we may stop providing access to those features or functionality and we will not be liable to you or any third party for any such change.
3. Content & Third-Party Services
3.1 Third-Party Content. We are not responsible for Content provided by others, including Mentions and Content from Third-Party Services (such as Content from Social Networks and apps from the App Directory). You and anyone else who accesses our Enterprise Services may access Content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. We will not be liable to you or any third party for Content provided by others.
3.2 Third-Party Services. If you access or purchase a Third-Party Service, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service.
WE MAKE NO REPRESENTATION AND WILL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN RELATION TO THE CONTENT OR USE OF, OR CORRESPONDENCE, AGREEMENTS OR TRANSACTIONS WITH, ANY THIRD-PARTY SERVICES. YOU MUST COMPLY WITH ALL AGREEMENTS AND OTHER LEGAL REQUIREMENTS THAT APPLY TO THIRD-PARTY SERVICES.
4. Your Responsibilities
4.1 Acceptable Use. You and your Authorized Users must comply with the Acceptable Use Rules (published at www.permeateq.com/legal/acceptable-use) and all applicable laws. If you or any of your Authorized Users do not comply with the Acceptable Use Rules or any applicable laws, we may remove any of your Content and temporarily suspend or restrict your access to the Enterprise Services without prior notice. In such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue.
4.2 Permeateq Professional Services. If your Service Level Agreement includes professional services (such as account set-up, provisioning, or training) (“Permeateq Professional Services”), the Permeateq Professional Services Terms published at www.permeateq.com/legal/professional-services-terms also apply to and govern those Permeateq Professional Services.
4.3 Advertising Terms. If you use the Enterprise Services to create and manage Ads Content on any Social Network, the Permeateq Ads Terms published at www.permeateq.com/legal/ads-terms also apply to and govern that use.
4.4 Beta Testing. From time to time, we may offer you the opportunity to install, use and test certain Permeateq services prior to their commercial release (“Beta Services”). Use of the Beta Services is optional. If you use any Beta Services, the Permeateq Beta Terms published at www.permeateq.com/legal/beta-terms apply to and govern those Beta Services.
4.5 Partner Services. Without limiting the generality of Section 3.2, if you purchase any Partner Services, you:
(a) acknowledge and agree that we are acting solely as an authorized reseller for such Partner Services; and
(b) expressly agree to be bound by the terms and conditions applicable to such services listed at www.permeateq.com/legal/third-party-terms or as otherwise set out in the applicable Service Level Agreement.
4.7 App Directory. When you access the App Directory and install or use one or more apps available there, you also agree to the App Directory Terms (published at https://permeateq.com/legal/app-directory-tos). The App Directory Terms apply to any app accessed through the App Directory, including Permeateq Apps.
4.8 Customer Content. You are solely responsible for Customer Content. We have no obligation or responsibility to review, filter, block or remove Content, including Customer Content.
4.9 Submitted Content. You acknowledge and agree that:
(a) the Enterprise Services do not help you comply with any laws, rules, or regulations that may apply to your collection or use of Submitted Content, which is solely your responsibility; and
(b) we will not be liable to you or any third party for the Submitted Content, and we make no warranty that any Submitted Content obtained or displayed through the Enterprise Services is accurate or complete.
4.10 Account Information. You are responsible for the completeness and accuracy of the account information you provide to us. You will promptly notify us upon becoming aware of any unauthorized access to or use of your login credentials or account.
4.11 Affiliates. Your Affiliates may use the Enterprise Services that you purchase, subject to the quantities or other usage limits set out in your Service Level Agreement. If an Affiliate wishes to have a separate account or wishes to be billed separately for its use of the Enterprise Services, that Affiliate will need to sign a separate Service Level Agreement, which will form a separate contract between Permeateq and that Affiliate.
4.12 Agency. If you act as a legal agent purchasing the Enterprise Services on behalf of an end-user client (the “Principal”),
then (a) that purchase must be made by signing a Service Level Agreement;
(b) the Principal must be identified as the end user on the applicable Service Level Agreement;
(c) you represent and warrant to us that you have obtained all necessary authorizations, consents, and licenses from the Principal to bind the Principal to this Agreement (including each applicable Service Level Agreement) and to act as the Principal’s agent, and all of your actions related to this Agreement are within the scope of your agency with the Principal; and
(d) you will defend, indemnify, and hold harmless Permeateq from all damages, liabilities, costs, and expenses (including reasonable legal fees) arising from any breach of the foregoing representation and warranty.
5.1 Enterprise Services. We keep all rights and interests in our Enterprise Services. The Enterprise Services contain Content owned or licensed by Permeateq (“Permeateq Content”). Permeateq Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Permeateq, we own and retain all rights in the Permeateq Content.
5.2 Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant Permeateq a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.
5.3 Customer Content. You retain your rights to any Customer Content you submit, post or display on or through the Enterprise Services. You grant us a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute your Customer Content solely for the purposes of providing and supporting the Enterprise Services. We may also use aggregated information derived in part from your use of the Enterprise Services for the purposes of enhancing and developing our products and services but will not sell, rent, or otherwise monetize any of that aggregated information.
6. Variation in Scope of Services
6.1 Variation and/or Extension of Scope of Services. Subject to Permeateq’s pricing policy, you shall make additional payment corresponding to any and all additional works and services provided by Permeateq above and beyond that stipulated in the Service Level Agreement, and if none has been duly executed, as agreed otherwise agreed between you and Permeateq.
7.Term and Termination
7.1 Term of Agreement. This Agreement will commence on the first day of the initial term set forth on your Service Level Agreement or, if no such Service Level Agreement has been duly executed, when you give Permeateq instructions to commence works on your project, and will continue in effect until the earlier of:
(a) the expiration of all Service Level Agreements applicable to you (including any renewal periods unless notice of non-renewal is provided as set out in this Agreement);
or(b) the termination of this Agreement in accordance with its terms (the “Term”).
7.2 Term of Service Level Agreements. The term of each Service Level Agreement will start on the first day of the initial term specified on the Service Level Agreement, or if none is duly executed, upon the Customer’s issue of instructions for Permeateq to commence works on the agreed project, and will continue for the specified term or until the project’s conclusion, or otherwise as per the terms of this Agreement. Except as expressly stated otherwise in a Service Level Agreement, all Service Level Agreements will automatically renew for subsequent one-year renewal periods unless a party gives the other party written notice of non-renewal at least sixty (90) days prior to the end of the then-current term. Permeateq reserves the right to increase the Fees for Enterprise Services and/or Partner Services on renewal by giving you written notice thereof (which notice may be given by email) provided that if Permeateq gives you such notice less than ninety (90) days prior to the end of then-current Term, you will have thirty (30) days thereafter to give us written notice to opt out of any applicable automatic renewal.
7.3 Termination for Cause.
A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days of receiving written notice of that material breach from the other party;
or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
7.4 Effects of Termination. Upon termination of this Agreement for any reason:
(a) all Service Level Agreements will automatically terminate;
(b) your access to Permeateq accounts, Enterprise Services and Partner Services will be terminated and you will immediately cease all use thereof; and
(c) you will pay all unpaid amounts you owe to Permeateq. If Permeateq terminates this Agreement in accordance with Section 7.3, then you will pay any unpaid Fees for the remainder of the term of each Service Level Agreement. In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable to Permeateq for the period prior to the date of termination.
7.5 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5, 8, and 9 will survive the expiration or termination of this Agreement.
8. Fees and Payment
8.1 Fees. You will pay all fees as and when described in the Service Level Agreements (the “Fees”).
8.2 Invoicing. We will invoice you for the Fees in the currency set forth on the applicable Service Level Agreement, and if none is specified, in United States Dollars (USD). Unless otherwise stated on the Service Level Agreement, all undisputed invoices are payable within thirty (30) days of the invoice date. Any disputed amounts will not affect payment of non-disputed amounts. You will make payments to the entity and address set forth in the invoice.
8.3 Late Payment. If any undisputed amounts invoiced are not received by Permeateq by the due date, then, at our discretion, such charges may accrue late interest at the lower of:
(a) the rate of 12% per year, or
(b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon thirty (30) days’ written notice to you provided after the due date of any undisputed amount, we may suspend your access to the Enterprise Services if we have not received the amounts invoiced in full.
8.4 Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Enterprise Services, which for clarity does not include any taxes based on Permeateq’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 8.4, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement will be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable will be increased as necessary so that, after making all required deductions and withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.
9. Confidentiality, Security & Data Protection
9.1 Confidential Information. Permeateq and you may exchange confidential information (“Confidential Information”) in the course of your negotiation and use of our Enterprise Services. Permeateq’s Confidential Information may include, but is not limited to, non-public information about our pricing, personnel, or partnerships, our product roadmap, our security and data protection documentation, or other non-public information we identify as confidential. Your Confidential Information includes non-public information about your policies (such as your policies for internal review or approval of Customer Content), personnel (including names and email addresses of your Authorized Users), or plans or strategies (such as marketing plans or social strategies you share with Permeateq in the course of our delivery of Permeateq Professional Services), and includes your Messaging Content but does not include any other Content published, communicated, or transmitted to or through a Social Network account. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if
(i) it was lawfully in the recipient's possession before receiving it from the discloser;
(ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party;
(iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or
(iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
9.2 Enterprise Security Standards. During the Term, we will maintain the following “Enterprise Security Standards”:
(a) Security Practices. Permeateq will implement and maintain security practices as described at https://permeateq.com/legal/security-practices.
(b)Reports. Upon request no more than once annually, Permeateq will provide you with
(a) a copy of its most recent security audit report (which may include summaries of test results or equivalent measures taken to assess the effectiveness of its control environment),
(b) a summary of its most recent penetration testing results, or (c) both.
(c) Disaster Recovery and Business Continuity. Permeateq has and will maintain a disaster recovery and business continuity plan.
(d) Breach Notification. Permeateq will notify you without undue delay (but in any event within 72 hours of becoming aware) of any unauthorized access to your Permeateq account (a “Breach”), will promptly take all necessary steps to mitigate the Breach, and will provide you with reasonable cooperation in investigating the Breach (including, on request and to the extent reasonable, providing you with copies of relevant records, logs, or other materials).
10. Warranties, Indemnities & Limitations of Liability WARRANTIES & DISCLAIMER
10.1 Mutual Warranties. Each of Permeateq and Customer represents and warrants that
(a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and
(b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.
10.2 Permeateq Warranties. Permeateq warrants that:
(a) subject to an API Change, the functionality of the Enterprise Services will not be materially decreased during the term of the applicable Service Level Agreement;
(b) to its knowledge, the Enterprise Services do not contain any malicious code or viruses;
(c) Permeateq has and will maintain and apply its own industry-standard company policies (including without limitation the policies made available at https://www.permeateq.com/legal/); and
(d) Permeateq is an authorized reseller of any Third-Party Services sold to Customer by Permeateq.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER OUR ENTERPRISE SERVICES “AS IS” AND ARE NOT MAKING, AND TO THE GREATEST EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM, ANY WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, AND/OR NON-INFRINGEMENT, THAT OUR ENTERPRISE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT OUR ENTERPRISE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE OUR ENTERPRISE SERVICES AT YOUR OWN RISK.
(b) UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
(c) WE ARE NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR THE CONTENT MADE AVAILABLE THROUGH THE ENTERPRISE SERVICES, INCLUDING CUSTOMER CONTENT, MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. PERMEATEQ DOES NOT CONTROL OR VET CONTENT AND IS NOT RESPONSIBLE FOR ANYTHING POSTED, TRANSMITTED, OR SHARED ON OR THROUGH THE ENTERPRISE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. INDEMNITIES
10.4 Indemnification by Permeateq. Subject to Customer’s compliance with Section
10.6, Permeateq will defend, indemnify, and hold harmless Customer, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim that the Customer’s use of the Enterprise Services as permitted hereunder directly infringes the third-party’s intellectual property rights (a “Claim”). Permeateq will have no liability for any Claim to the extent it arises from:
(i) a modification of the Enterprise Services by or at the direction of any person other than Permeateq;
(ii) use of the Enterprise Services in violation of this Agreement or applicable law;
(iii) use of the Enterprise Services after Permeateq notifies Customer to discontinue use because of an infringement or misappropriation claim; or
(iv) the combination, operation, or use of the Enterprise Services with any other software, program, or device not provided or specified by Permeateq to the extent such infringement would not have arisen but for such combination, operation, or use. For the avoidance of doubt, Permeateq’s indemnification obligations in this Section 10.4 will not apply to third-party content, Social Networks, Partner Services or other Third-Party Services accessed through the Enterprise Services, or to Customer Content or Mentions. If the Enterprise Services or any part thereof have become, or in Permeateq’s opinion are likely to become, the subject of any Claim,
Permeateq may at its option and expense:
(1) procure for Customer the right to continue using the Enterprise Services as set forth hereunder;
(2) replace or modify the Enterprise Services or applicable functionalities to make them non-infringing; or
(3) if options (1) or (2) are not reasonably practicable, terminate either or both this Agreement or the Service Level Agreement for such Enterprise Services and refund to Customer any unearned Fees that Customer paid in advance for such Enterprise Services.
This Section 10.4 sets forth Permeateq’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third-party intellectual property rights.
10.5 Indemnification by Customer. Subject to Permeateq’s compliance with Section 10.6, Customer will defend, indemnify, and hold harmless Permeateq, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim:
(a) alleging that Customer Content, Ads Content, or Submitted Content infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; or
(b) arising from Customer’s breach of the Acceptable Use Rules, any terms or conditions applicable to Customer’s use of any Third-Party Services, or any applicable law.
10.6 Indemnification Procedure. The indemnified party will:
(a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim;
(b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and
(c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense. LIMITATIONS OF LIABILITY
10.7 Maximum Liability. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 10.7 THROUGH 10.9, AND NOT INCLUDING CUSTOMER’S OBLIGATION TO PAY ALL FEES OWED TO PERMEATEQ HEREUNDER, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE ENTERPRISE SERVICES SUBJECT TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 10.7 EXCLUDES ANY FEES PAID BY CUSTOMER TO A THIRD PARTY OR FOR ANY PARTNER SERVICES, EVEN WHERE PERMEATEQ’S ENTERPRISE SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER SERVICES.
10.8 Excluded Damages.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE ENTERPRISE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.
(b) The Enterprise Services support multi-factor authentication, and the Acceptable Use Rules require you to maintain the confidentiality of your passwords or other login credentials for the Enterprise Services.
ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PERMEATEQ BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN IF:
(A) THE UNAUTHORIZED ACCESS OR USE COULD HAVE BEEN PREVENTED THROUGH YOUR USE OF MULTI-FACTOR AUTHENTICATION; OR
(B) YOU OR ANY OF YOUR AUTHORIZED USERS FAIL TO MAINTAIN THE CONFIDENTIALITY OF ANY PASSWORD OR OTHER LOGIN CREDENTIALS.
(C) WITHOUT LIMITING SECTION 10.8(b), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PERMEATEQ BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN, EXCEPT TO THE EXTENT PERMEATEQ’S BREACH OF THE ENTERPRISE SECURITY STANDARDS RESULTS IN THE UNAUTHORIZED DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION.
(D) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE ENTERPRISE SERVICES ARE SET FORTH IN THE ENTERPRISE SERVICE LEVEL AGREEMENT.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR
(I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT;
(II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS;
(III) FRAUDULENT MISREPRESENTATION OR WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES; OR
(IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
10.10 Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 10.7 THROUGH 10.9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PERMEATEQ WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
11.1 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Service Level Agreements), without your consent, to our Affiliate, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.
11.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
11.3 Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of the Enterprise Services and may use your name(s) and logo(s) in:
(a) Permeateq’s digital, online, and printed marketing materials (including on our websites); and
(b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.
11.4 Force Majeure. Neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
11.5 Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the Permeateq website. It is important for you to review this Agreement before using our Enterprise Services and from time to time, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Enterprise Services after any such changes are effective will constitute your consent to such changes. Except for changes made by us as described here, no other amendment or modification of this Agreement will be effective unless set forth:
(a) in a Service Level Agreement between you and Permeateq, and signed by you; or
(b) in an agreement signed or otherwise agreed, whether orally or in writing, by both you and Permeateq.
11.6 Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
11.7 Notices to You. Permeateq may give notice to you by placing a banner notice on the Permeateq platform or Permeateq’s website. We may also contact you or your Authorized Users through your Permeateq account or contact information you provide, such as email or telephone. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Enterprise Services or this Agreement.
11.8 Notices to Permeateq. For any notice to Permeateq that you give under or regarding this Agreement, you must notify Permeateq by email to email@example.com with a duplicate copy raised via the Permeateq ticketing system found at https://permeateq.com/create-a-ticket.
11.9 Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
11.10 Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
11.12 Governing Law and Dispute Resolution. (a) The municipal laws of the Republic of Kenya will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Enterprise Services (“Dispute”), without giving effect to conflict-of-law principles.
(b) If either of us breach this Agreement or violate the other’s rights or another person’s rights, in addition to any other remedy, you or we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement and seek reimbursement of reasonable legal fees associated therewith.
(c) If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding mediation before mediators chosen under the Court-Annexed Mediation Scheme in Kenya. You will give notice of your Dispute to us in writing. The mediation will take place in Nairobi, Kenya under the Court-Annexed Mediation Rules, 2022. The mediator will have the right to decide how the costs should be divided between us. The mediator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The arbitrator’s award can be entered into the registry of the High Court in Nairobi, Kenya, and enforced in the same way as a court order if the court in the enforcing jurisdiction allows.
(d) Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
11.13 Export Compliance. You will not use or access our Enterprise Services if you are located in any jurisdiction in which the provision of our Enterprise Services is prohibited under Kenyan, U.S. or other applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to our Enterprise Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that
(a) you are not named on any Kenyan or U.S. government list of persons or entities prohibited from transaction with any Kenyan or U.S. person;
(b) you are not a national of, or a company registered in, any Prohibited Jurisdiction;
(c) you will not allow Authorized Users to access or use our Enterprise Services in violation of any Kenyan, U.S. or other export embargoes, prohibitions or restrictions; and
(d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to Kenya and the United States.
11.14 Entire Agreement. This Agreement, including the other documents referred to as applicable to the Enterprise Services in this Agreement, is the entire agreement between you and Permeateq for your use of our Enterprise Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.