Last updated: 1/1/2024 

These Terms of Service, together with the terms in any Order Forms you may execute, and any additional agreements, schedules, exhibits or other terms referred to herein or in an Order Form (collectively, the “Terms”) govern your access to and use of the Services (defined below) provided by Pacvue Corporation, a Washington corporation (“Pacvue”, “we” or “our”).   

By (1) clicking a box indicating acceptance, (2) accessing or using Pacvue’s Services, (3) creating or accessing an account on Pacvue’s website or app or (4) executing an Order Form, you accept and agree to these Terms. If you are accepting on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “you” or “Customer” shall refer to such entity and its affiliates. If you lack such authority, or do not agree with these terms and conditions, you must not accept these Terms and may not use the Services.   

Pacvue’s direct competitors are prohibited from accessing or using the Services, except with Pacvue’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. 

Because the Services are always changing, we may need to revise these Terms at any time.  We will always revise the “Last updated” date above to reflect the current Terms.  If we materially change these Terms, we will provide you with reasonable advance notice, such as by sending an email notification and/or providing notice through the Services.  By continuing to access or use the Services, you confirm your acceptance of the revised Terms and all of the terms incorporated herein by reference. 

1. DEFINITIONS ‍ 

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. 

1.2 “Bug” means any defect, error, flaw, failure, fault, or mistake in the code, files, scripts, agents, program, software, system, or service. 

1.3 “Content” means information obtained by Pacvue from publicly available sources or its third-party content providers and made available to Customer through the Services. 

1.4 “Customer Data” means data and information provided or made available by Customer to Pacvue through its use of the Services. For clarity, Customer Data does not include any Content.   

1.5 “Malicious Code” means software intended to cause harm, including, for example, viruses, worms, time bombs and Trojan horses.   

1.6 “Managed Services” means any managed services that Pacvue may perform for Customer if ordered pursuant to an Order Form. 

1.7 “Order Form” means any order form entered into by Customer and Pacvue that incorporates these Terms. 

1.8 “Outside Platform” means any third-party platform or service supported by the Services and configurable by Customer to interoperate with the Services, such as the online marketplace made available by Amazon Services LLC. 

1.9 “Personal Information” means any information relating to an identified or identifiable natural person, or as may otherwise be defined as “personal information” or “personal data” under applicable Privacy Laws.   

1.10 “Privacy Laws” means any laws, rules, directives and regulations pertaining to data privacy and/or the protection of Personal Information, including (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”); (ii) United Kingdom’s Data Protection Act of 2018 and other implementation of the GDPR;  (iii) the California Consumer Privacy Act of 2018 (commonly called ‘CCPA’); (iv) the Australian Privacy Act 1988 (Cth) and the Australian Privacy Amendment (Enhancing Privacy Protection Act) (2012); (v) the Canadian Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA); and (vi) any amendments, successor legislation or regulations thereto. 

1.11 “Purchased Services” means the particular Services (including all Updates thereto) and, if applicable, Upgrades and Managed Services, purchased by Customer or its Affiliates pursuant to an Order Form. 

1.12 “Services” means the features or functionalities enabled by the Pacvue software provided by Pacvue and its Affiliates, including Updates and Upgrades thereto. For clarity, the “Services” exclude Content and Outside Platforms.   

1.13 “Subscription Term” means the term set forth in an Order Form. 

1.14 “Update” means any update to any Services occurring in the ordinary course of Pacvue’s business that is made generally available to third-party Pacvue customers of such Services.   

1.15 “Upgrade” means any feature or functionality of the Services that is not made generally available to third-party Pacvue customers of a particular Service.   

1.16 “Usage Data” means any data and information created by virtue of Customer’s use of the Services or as derived in non-identifying, aggregate form from the processing of Customer Data.  For clarity, Usage Data does not include any Personal Information. 

1.17 “User” means Customer, or any individual authorized by Customer, to access or use the Services.   

2. PROVISION OF SERVICES.  SUBJECT ALWAYS TO YOUR COMPLIANCE WITH THESE TERMS, PACVUE AGREES AS FOLLOWS: 

2.1 License Grant.  Upon entering these Terms, Pacvue grants you a limited, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license, during the Subscription Term, to access and use the Services, including the Content thereon, for your internal business purposes solely in the manner permitted by these Terms and subject to the use restrictions described below. 

2.2 Provision of Purchased Services. During the Subscription Term, Pacvue will:   

      (A) make the Purchased Services and Content available to Customer pursuant to these Terms in accordance with all U.S. law generally applicable to Pacvue’s provision of its Services to its customers (i.e., without regard for Customer’s particular use of the Services);   

      (B) provide standard support for Purchased Services to Customer through the Services at no additional charge (or upgraded support, if expressly purchased under an Order Form);   

      (C) provide any Managed Services that may be ordered pursuant to an Order Form; and   

      (D) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Pacvue will use its best efforts to provide advance notice), (ii) any unavailability or outage caused by circumstances beyond Pacvue’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, tornado, typhoon, avalanche, or snowstorm, civil unrest, act of terror, strike or other labor problem, Internet service provider interruption, failure, or delay, interruption, failure, or delay of Pacvue’s server(s), Outside Platform interruption, error, or termination, or denial of service, attack or hack, and (iii) any error, unavailability, outage, or suspension caused by any Bug in the Services, provided that Pacvue will work to remedy such Bug within a reasonable time. 

2.3 Agency as Customer. In the event that Customer is an advertising agency entering into these Terms on behalf of one or more of its advertiser clients, Customer represents, warrants and agrees that: 

      (A) it has the authority to act on behalf of its clients and all of Customer’s actions related to these Terms will be within the scope of its agency; 

      (B) it will ensure that its clients comply with these Terms and the terms of any Order Form(s); 

      (C) it is responsible for the acts or omissions of its clients, including those that constitute a breach of these Terms or an Order Form; 

      (D) it has the right to grant the rights granted hereunder with respect to any intellectual property, account information, Customer Data and/or other materials provided or made available by Customer to Pacvue (with the acknowledgment that the term “Customer Data” will be deemed to include data provided by Customer’s advertiser clients); and 

      (E) in the event a dispute arises in any way relating to these Terms, any Order Form(s) or Pacvue’s Services, only Customer, as the party to these Terms, and not any of Customer’s clients, is permitted to seek recourse against Pacvue. 

2.4 Protection of Customer Data.   

      (A) No Personal Information.  You acknowledge and agree that, in providing the Services, Pacvue may receive or be given access to Customer Data from you or through your Outside Platform accounts.  You acknowledge that the Services and Pacvue’s supported integration of Outside Platforms are not intended to receive or process any third-party Personal Information (except, for clarity, as related to Users).  You agree not to provide or process any third-party Personal Information through the Services.  Each party agrees to promptly inform the other if it discovers any third-party Personal Information among your Customer Data. 

      (B) Right to Provide.  By providing Customer Data to Pacvue, you represent and warrant that you have the right to provide such Customer Data for the uses set forth herein.  You further agree that no Customer Data violates the privacy rights of any individual or intellectual property rights of any third party.  Without limiting the foregoing, you represent and warrant the use of the Customer Data as permitted under these Terms and complies with all applicable laws and any privacy policies applicable to the Customer Data by virtue of its provenance.   

      (C) Protection; Compliance with Laws.  All collection, use, and processing of Customer Data will comply with all applicable U.S. laws, rules and regulations.  Pacvue implements and maintains commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data; however, you acknowledge that no security measures involving transmission of Internet-accessible data are perfect. Pacvue maintains security incident management policies and procedures and will, to the extent permitted by law, promptly notify you in the event of any unauthorized access to or disclosure of your Customer Data.  Pacvue will make commercially reasonable efforts to identify and remediate the cause of any actual or reasonably suspected security incident.   

      (D) Services Improvement.  You agree that Pacvue may use Customer Data in aggregated form for the purpose of general statistical analysis, improvement of the Services, and to create reports, studies, analyses and other work product (however, Pacvue shall not distribute any such aggregated data in a manner identifiable as originating from the Customer Data without your prior written consent).  You acknowledge that the Services create, and process Usage Data and you agree that Pacvue may use Usage Data for any purpose. 

3. OUTSIDE PLATFORMS AND CONTENT   

3.1 Relationship with Outside Platforms and Services. The Services integrate with, interact with and/or provide links to Outside Platforms.  Company has no affiliation, association, or sponsorship by any Outside Platforms nor does it endorse any Outside Platforms.  Pacvue does not make any representation, warranty or guaranty regarding the products, services, acts or omissions of any Outside Platforms or anything that takes place between you and any such third parties, whether or not they are designated by Pacvue as “certified” or otherwise.  It is your responsibility to analyze and interpret the terms of service, privacy policy, community standards and other contracts of all Outside Platforms that are applicable to your use of the Services (collectively, “Outside Terms”), and you acknowledge that such Outside Terms are solely between you and the applicable Outside Platforms.  We have no control over any Outside Platform and are not a party to any Outside Terms.   

3.2 Outside Platform interoperability.  Pacvue cannot guarantee the continued availability of any particular Outside Platform feature, and may cease providing them without entitling Customer to any refund, credit, or other compensation, such as if an Outside Platform provider ceases to make the Outside Platform available for interoperation with the corresponding Services features in a manner acceptable to Pacvue. 

3.3 Necessary Services.  Without limiting the generality of the foregoing, you acknowledge and agree that in order for the Services to work with certain Outside Platforms, such as Amazon’s marketplace services for sellers, you must grant us access to your applicable third party account(s) with such Outside Platforms, such as your Amazon account for Amazon’s marketplace services.   

3.4 Customer’s Right to Access.  You represent that you have the rights to access and grant us access to any Outside Platforms you use with the Services, and that you are an owner or authorized user of the Outside Platform accounts you authorize us to incorporate.  You further agree and acknowledge that we do not own or operate such Outside Platforms and we are therefore not responsible for the operations, security, or performance of such Outside Platforms or Customer Data provided thereby.   

3.5 Release.  By using the Services, you hereby release Pacvue from, and waive any and all claims or claim rights that you may have against Pacvue, and release and indemnify Pacvue against any claims that any third party may have against us, arising from or related to (i) your use of any Outside Platforms, including if accessed or used via our Services, and (ii) any Outside Terms, applicable privacy policies or any other rules or regulations of such third parties entered into by you or applicable to you, including a breach thereof by you or any applicable Outside Platform. 

3.6 Third Party Content.  Content on the Services may be supplied by third parties. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties (including other users) are those of the respective authors or distributors and not of Pacvue.  You may enter into correspondence with or participate in promotions of such third parties, such as advertisers promoting their products or services.  Any such correspondence or participation, including the delivery of and the payment for products, services or content, are solely between you and each such third party.  Pacvue neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, submission, posting, or statement made on the Services. 

3.7 Removal of Content and Outside Platforms. If Customer receives notice from Pacvue that an Outside Platform must be removed, modified and/or disabled to avoid violating applicable law, applicable Outside Terms or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Pacvue’s judgment immediate action is necessary or continued violation is likely to reoccur, Pacvue may disable Customer’s use of the applicable Outside Platform within the Services and any related aspect of the Services to the extent it deems necessary to avoid violating applicable law, applicable Outside Terms or third-party rights.  If requested by Pacvue, Customer shall confirm such deletion and discontinuance of use in writing and Pacvue shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Pacvue is required by any third-party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law, Outside Terms or third-party rights, Pacvue may discontinue Customer’s access to such Content through the Services.   

4. USE OF SERVICES AND CONTENT   

4.1 Subscriptions. Unless otherwise provided in these Terms or subsequently agreed to by the parties in writing, (a) Purchased Services and access to Content are purchased as subscriptions for the Subscription Term and (b) subscriptions for additional Services may be added during a Subscription Term through a new schedule to an Order Form at Pacvue’s standard pricing for such Services. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Pacvue regarding future functionality or features.   

4.2 Usage Limits. Customer agrees to abide by any usage limits set forth in an Order Form.  If no such usage limits are set forth, then Customer agrees to a reasonable usage of the Services consistent with usage norms across Pacvue’s general customer base as measured by objective criteria such as API calls.  In the event of excess usage, Pacvue may work with Customer to (a) reduce Customer’s usage to meet any limit or normal range or (b) increase Customer’s pricing proportionately to its departure from any limit or normal range by a reasonable amount mutually agreed to by Pacvue and Customer to account for the excess usage.   

4.3 Customer Responsibilities. Customer will (a) be responsible for its Users’ compliance with these Terms or any other applicable requirements, terms, or conditions provided by Pacvue in writing, (b) be responsible for the interoperation of any Outside Platforms with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Pacvue promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with these Terms and applicable laws and government regulations, and (e) comply with terms of service of any Outside Platforms with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Pacvue’s judgment threatens the security, integrity, or availability of Pacvue’s services, may result in Pacvue’s immediate suspension of the Services. However, Pacvue will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.   

4.4 Usage Restrictions.  Customer agrees that it and its Users will not:   

      (A) make any Services or Content available to anyone other than Customer or Users, or use any Services or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise by Pacvue;   

      (B) sell, resell, license, sublicense, distribute, make available, rent or lease any Services or Content, or include any Services or Content in a service bureau or outsourcing offering;   

      (C) use the Services or Outside Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;   

      (D) use the Services or Outside Platform to access, process, store or transmit any Malicious Code;   

      (E) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein;   

      (F) attempt to gain unauthorized access to any Services or Content or their related systems or networks;   

      (G) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Pacvue intellectual property except as permitted under these Terms or with Pacvue’s express written consent;   

      (H) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof;   

      (I) copy Content except as permitted herein or with Pacvue’s express written consent,   

      (J) frame or mirror any part of any Services or Content;   

      (K) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services or Content or access either to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Services, (iii) copy any ideas, features, functions or graphics of the Service, or (iv) determine whether the Services are within the scope of any patent;   

      (L) use the Services for any unlawful purpose; or   

      (M) use the Services for any other purpose prohibited by Pacvue, provided that Pacvue will use commercially reasonable efforts to give Customer prior notice of any such other prohibited purpose. 

5. FEES AND PAYMENT   

5.1 Fees. Customer will pay all fees described in any Order Form in accordance with the terms of the Order Form (“Fees”).  Except as otherwise specified in these Terms or in an Order Form, (i) payment obligations are non-cancelable and all Fees paid are non-refundable, and (ii) the nature, quantity or scope of Purchased Services may only be increased or decreased in accordance with the applicable Order Form. Customer hereby acknowledges that its right to any Upgrades will be contingent upon Customer agreeing to additional Fees, either as set forth in a new schedule to its Order Form or as otherwise agreed by the parties in writing. In the event that Customer disputes any Fees in any invoice, you agree to notify us within twenty (20) days of the receipt of such invoice. If you fail to notify us within such period, you hereby waive your right to dispute such Fees. 

5.2 Payment. Customer will maintain with Pacvue (or its payment processor) valid and updated credit card information or alternative financial or payment documentation or information (for example, bank account information) reasonably acceptable to Pacvue. Except as otherwise provided in an Order Form, Customer authorizes Pacvue (or its payment processor) to charge such payment method in advance of Customer’s access or use of the Services. Failure by Customer to provide a purchase/insertion order shall not limit Pacvue its rights or remedies. 

5.3 Overdue Charges. If Pacvue is unable to effect payment when due using Customer’s payment method, then Pacvue may, without limiting its rights or remedies, charge Customer for all costs, including collection costs, court costs, and reasonable attorneys’ fees associated with the attempt and/or collection of past due amounts, as well as a monthly late fee equal to 1.5% per month or the greatest amount allowed under the law.  

5.4 Suspension of Services. In the event any Fees due and owing from the last day of the initial payment period, Pacvue may, after providing notice to Client, and without limiting any of its other rights and remedies: (i) suspend, terminate, or otherwise deny Client access to or use of, all or any part of the Services, and (ii) require full payment of the overdue amount, and any other amount due and owing, prior to additional or continued performance by Pacvue. 

5.5 Taxes. Pacvue’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases or subscriptions hereunder. If Pacvue has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Pacvue will invoice Customer and Customer will pay that amount unless Customer provides Pacvue with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Pacvue is solely responsible for taxes assessable against it based on its income, property and employees.   

6. PACVUE’S RIGHTS; LICENSE TO FEEDBACK 

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Pacvue, its Affiliates and its licensors reserve all of their rights, title, and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.   

6.2 License by Customer to Use Feedback. Customer grants to Pacvue and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Pacvue’s or its Affiliates’ services.   

7. CONFIDENTIALITY   

7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the contents of any Order Form(s) or other written information specific to Customer’s relationship with Pacvue. Confidential Information of Customer includes Customer Data; Confidential Information of Pacvue includes the Services and Content. Confidential Information of each party includes business and marketing plans, financial data and information, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For clarity, the non-disclosure obligations in this Section 7 apply to Confidential Information exchanged between the parties in connection with the evaluation of any Services, whether Purchased Services or otherwise.   

7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and (ii) except as otherwise authorized by the Disclosing Party in writing, limit disclosure and access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, professional advisors and contractors who need that access for purposes consistent with these Terms and are bound by confidentiality obligations in favor of the Receiving Party containing protections not materially less protective of the Confidential Information than those herein, this does not include disclosure to to Pacvues competitors which is specifically excluded. 

7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.   

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS   

8.1 Representations. Each party represents that it has validly entered into these Terms and has the legal power to do so.   

8.2 Services Warranties. Pacvue warrants that, during the Subscription Term, (a) the Purchased Services will perform materially in accordance with any documentation provided by Pacvue in writing, and (b) subject to Section 3 (“Outside Platforms and Content”) above, Pacvue will not materially modify the overall functionality of the Purchased Services in a manner that has an adverse effect on the Purchased Services. For any breach of a warranty under this Section 8.2, Customer’s exclusive remedies are those described in Section 11.2 (“Termination”) and Section 11.3 (“Refund or Payment upon Termination”) below.   

8.3 Infringement Warranty & Remedy.  Pacvue warrants that, when used in accordance with these Terms, the Purchased Services do not and will not infringe the intellectual property rights of any third party.  The foregoing warranty will not apply to the extent any infringement arises from the Customer’s use of the Purchased Services in combination with hardware or software not provided by Pacvue.  In the event of a breach of the warranty in this Section 8.3, Pacvue, at its own option and expense, will promptly take the following actions: (a) secure for Customer the necessary rights to allow Customer continue using the Purchased Services; (b) replace or modify the Purchased Services to make them non-infringing; or (c) terminate the infringing features of the Purchased Services and refund to Customer any prepaid fees for such features, in proportion to the remaining time in the applicable Subscription Term. In addition to Customer’s right to terminate for breach where applicable, the preceding sentence states Pacvue’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.3 and for potential or actual intellectual property infringement by the Purchased Services. 

8.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PACVUE AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES, OR CONDITIONS WITH RESPECT TO THE CUSTOMER’S USE OF THE SERVICES INCLUDING ANY WARRANTY THAT ANY SERVICES AND ESTIMATIONS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, OR THAT ALL ERRORS WILL BE CORRECTED. PACVUE ALSO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER UNDERSTANDS THAT USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK AND THAT PACVUE PROVIDES THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.”  ‍ 

9. INDEMNIFICATION   

9.1 Indemnification by Customer.  Customer shall defend, indemnify, and hold Pacvue, its Affiliates, and their officers, directors, employees, successors, agents and representatives, harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against them by a third party arising out of (i) a breach of Customer’s reps, warranties, covenants or agreements herein; (ii) Customer’s intentional misconduct or gross negligence; (iii) Pacvue’ use of Customer Data as permitted hereunder; (iv) Pacvue’s access to or use of Outside Platforms as permitted hereunder or (v) the acts or omissions of any User using Customer’s account.   

9.2 Pacvue shall (a) promptly give written notice of the Claim to Customer; (b) give Customer sole control of the defense and settlement of the Claim using counsel reasonably approved by Pacvue (provided that Customer may not settle or defend any Claim unless it unconditionally releases Pacvue of all liability without the obligation to take or refrain from any action or pay any amounts); and (c) provide to Customer, at Customer’s cost, all reasonable assistance.   

10. LIMITATION OF LIABILITY   

10.1 Limitation of Liability.  EXCEPT FOR INDEMNITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR PURCHASED SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5 (“FEES AND PAYMENT”) ABOVE.   

10.2 Excluded Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, OR GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY BUSINESS INTERRUPTION OR LOSS OF DATA, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.   

11. TERM AND TERMINATION   

11.1 Term. The term of these Terms shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Order Forms, unless otherwise terminated earlier as provided hereunder. Except as otherwise provided under an Order Form, the Services shall automatically renew for the same stated Subscription Term unless either party gives thirty (30) days written notice prior to the end of the then-current Term. Client shall communicate such intent to termination@pacvue.com.  
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11.2 Termination. A party may terminate these Terms upon 30 days written notice to the other party in the event of a material breach if such breach remains uncured at the expiration of such period.  Termination request by Client shall be sent to via email to termination@pacvue.com. 
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11.3 Refund or Payment upon Termination. In no event will termination relieve the Customer of its obligation to pay any Fees incurred for Customer’s use of the Services prior to the effective date of termination.  If these Terms are terminated by Customer for cause under this Section 11.2(B), Pacvue will refund Customer any prepaid fees proportional to the remaining duration of any Subscription Term. If these Terms are terminated by Pacvue for cause under Section 11.2(B), Customer will promptly pay Pacvue any unpaid fees that were incurred or would have been incurred during the Subscription Term.   
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11.4 Survival. Sections 5 through 7 and 9 through 13 survive any termination or expiration of these Terms. 

12. ARBITRATION AND CLASS ACTION WAIVER 

12.1 Informal Process First.  You agree that in the event of any dispute between you and Pacvue, you will first contact Pacvue and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution. 
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12.2 Arbitration Agreement and Class Action Waiver.  After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Dispute“) relating in any way to your use of Pacvue’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Dispute. You and Pacvue agree that any Dispute will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules“) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be administered in Los Angeles, California by a sole arbitrator in accordance with the JAMS Rules applying the governing law specified in these Terms. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and Pacvue are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and Pacvue will have the right to (i) bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator and (ii) you and Pacvue may instead assert a claim in “small claims” court, but only if the claim qualifies, the claim remains in such court and the claim remains on an individual, non-representative and non-class basis. 
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12.3 Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules.  The prevailing party is entitled to recover its costs and expenses in connection with the arbitration and any arbitral award, including reasonable attorneys’ fees, in addition to any other relief award by the arbitrator. 

13. GENERAL PROVISIONS   

13.1 Notice.  Except as otherwise specified in an Order Form, all notices related to these Terms and any Order Form(s) will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), the day of sending by email, using these addresses: 
      (A) To Customer: To Customer’s email address(es) in Customer’s account or Order Form, or to the mailing address provided by Customer in an Order Form.   
      (B) To Pacvue:  To legalrequests@pacvue.com. Customer may update its notice email address through Customer’s account within the Services.  Otherwise, a party may update the notice address(es) above on one or more occasions by providing notice to the other party in accordance with this Section 13.1. 
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13.2 Export Compliance. The Services, Content, other Pacvue technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Pacvue and Customer each represent that it is not named on any U.S. government denied-party list.   
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13.3 Entire Agreement; Order of Precedence. These Terms, including any Order Form(s) executed hereunder by Customer and Pacvue (including any Schedules thereto), constitute the entire agreement between Pacvue and Customer regarding Customer’s use of Services and Content and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  Unless a provision of an Order Form specifically overrides these Terms, these Terms control in the event of any conflict or inconsistency between these Terms and an Order Form.   
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13.4 Relationship of the Parties. The parties are independent contractors.  Neither these Terms nor any Order Form creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.   
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13.5 Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms or any Order Form.   
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13.6 Waiver. No failure or delay by either party in exercising any right (including invoicing) under these Terms will constitute a waiver of that right.   
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13.7 Severability. If any provision of these Terms is held by an arbitrator or court of competent jurisdiction to be contrary to law, the parties agree that the arbitrator or court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the remaining provisions of these Terms will remain in full force and effect.   
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13.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells all or substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate these Terms upon written notice. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.   
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13.9 Governing Law.  The laws of the State of California, without regard to principles of conflicts of laws, govern these Terms, any Order Form(s), any incorporated documents, and any other terms and conditions subsequently agreed to by the parties in connection with the Services, and any dispute arising between Customer and Pacvue.