Last Updated: June 30, 2022
This SERVICE AGREEMENT ("Agreement"), effective as of the date of execution of an Order (the "Effective Date") that incorporates this Agreement, which is entered into by and between PLUTO BIOSCIENCES, INC., a Delaware corporation, having a business address at P.O. Box 482, Golden, CO 80402 ("Pluto") and the Individual or Legal Entity ("Customer").
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
1.1 "Affiliate" means any person or entity that owns or controls, is owned or controlled by, or is under common control or ownership with, a party to this Agreement, where "control" is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise.
1.2 "Customer Content" means any data, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to the online Services by Customer or Users and is processed by Pluto on behalf of Customer. For the avoidance of doubt, Customer Content does not include learnings or usage, statistical, or technical information about Customer Content or Customer’s use of the Services that does not reveal the actual contents of Customer Content or identity of Customer or Users.
1.3 "Customizations" means all software, code, materials, ideas, deliverables, and items that are conceived, made, discovered, written, or created by Pluto’s personnel in connection with Professional Services under an Order or SOW.
1.4 "Disclosing Party" means the party disclosing Confidential Information to the Receiving Party.
1.5 "Documentation" means documentation provided by Pluto on the Site that is uniformly available and applicable to all Pluto customers and relates to the operation and use of the Services, including user manuals, operating instructions, help articles, guides, and release notes, each as updated by Pluto from time to time.
1.6 "Order" means an executed ordering document or online order issued or otherwise approved in writing by Pluto that incorporates this Agreement by reference and specifies the Services Customer is authorized to access and use.
1.7 "Pluto Properties" means the Services, Documentation, and Customizations, and all Pluto technology, software, data, methodologies, improvements, and documentation used to provide or made available in connection with the Services, Documentation, and Customizations, and all intellectual property and proprietary rights in and to the foregoing.
1.9 "Professional Services" means implementation, customization, configuration, integration, training, advisory, and other professional services related to the online Services that are provided or controlled by Pluto.
1.10 "Receiving Party" means the party receiving or accessing Confidential Information of the Disclosing Party.
1.11 "Service(s)" means the Professional Services and Subscription Services and any other online service or application provided or controlled by Pluto for use with the Subscription Services.
1.12 "Site" means Pluto’s website at https://pluto.bio and any website linked from such website that is owned or controlled by Pluto.
1.13 "SOW" means an executed statement of work or similar document issued or otherwise approved in writing by Pluto that incorporates this Agreement by reference and specifies the scope of the Professional Services for Customer.
1.14 "Subscription Services" means the subscription-based online services and applications for organizing, storing, visualizing, and otherwise managing biology data that are provided or controlled by Pluto.
1.15 "SysAdmin" means a User with certain administrative control rights over the online Service(s).
1.16 "Term" means the period of authorized access and use of a Service specified in an Order.
1.17 "User" means any individual permitted or invited by Customer or another User to access and use online Services available to Customer under an Order and the terms of this Agreement.
2.1 Right to Access and Use. Subject to the terms and conditions of this Agreement and in consideration of the fees specified in any Order or SOW, Pluto hereby grants Customer a worldwide, non-exclusive, non-transferable right to access and use Pluto’s online Services during the applicable Term for Customer’s own business purposes. Users may exercise such limited right on behalf of Customer.
2.2 Restrictions. Customer’s access to and use of the Services during any Term is subject to the applicable restrictions in an Order, SOW, and the subscription details found in the SysAdmin console of an online Service, and Pluto’s Policies. Without limiting the foregoing, Pluto reserves the right to implement reasonable restrictions and limitation on the volume of data that can be downloaded through any online Service. Customer shall not, nor permit or encourage any third party to, directly or indirectly (a) reproduce, display, download, modify, create derivative works of or distribute the Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer; (c) permit a set of login credentials for a Service to be used by more than one User or permit any party, other than the then-currently authorized Users to independently access the Platform; (d) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; or (e) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
3. SECURITY AND PROCESSING.
3.1 Security. Pluto has implemented and will maintain information security policies and safeguards, which include industry standard physical, organizational, and technical measures designed to preserve the security, integrity, and confidentiality of the online Services and Customer Content and to protect against information security threats.
3.2 Processing. Customer represents and warrants that it has all rights, permissions, and consents necessary to: (a) submit all Customer Content to the Services; and (b) grant Pluto the limited rights to process Customer Content as forth herein. Customer hereby grants Pluto a worldwide, non-exclusive, non-transferable, right to use and otherwise process Customer Content under this Agreement: (x) as required by applicable law; (y) as requested by Customer in writing or as allowed by Customer via a Service’s access controls; or (z) as necessary to support, provide, or improve the Services, which may include analysis by automated systems, or to prevent or address technical problems with the Services or violations of this Agreement. Notwithstanding any other term of this Agreement, Pluto may access and use, and shall retain all right, title and interest in transactional and performance data related to use of the Services, which may include aggregated and anonymized data based upon Customer Content, so long as such data does not reveal Customer, any Customer Confidential Information, personally identifiable information, or specific traits of any particular individual person or of Customer or a Customer Affiliate. Pluto’s limited right to process Customer Content hereunder will not excuse any obligation of Pluto relating to Customer Content under this Agreement.
3.3 Use of Third Parties. Pluto may engage third parties to act on Pluto’s behalf in connection with Pluto’s provision of the Services, provided that: (a) such third parties are subject to applicable confidentiality and data security obligations that are substantially as protective as those set forth in this Agreement; and (b) Pluto is responsible for such third parties’ acts and omissions in relation to Pluto’s obligations under this Agreement.
4. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
4.1 Pluto. As between the parties, all right, title, and interest in and to Pluto Properties is owned by Pluto notwithstanding any other provision in this Agreement. Except as expressly set forth in this Agreement, Pluto does not convey any rights to Customer or any User.
4.2 Customer. As between the parties, Customer retains all its right, title, and interest in and to Customer’s Confidential Information, including Customer Content, and all intellectual property and proprietary rights therein. Except as expressly set forth in this Agreement, Pluto acquires no right, title, or interest from Customer under this Agreement in or to Customer Content.
4.3 Feedback. Customer grants Pluto a worldwide, irrevocable, perpetual, sublicensable, transferable, non-exclusive license to use and incorporate into Pluto’s products and services any feedback or suggestions for enhancement that Customer or a User provides to Pluto ("Feedback"), without any obligation of compensation. Feedback is provided by Customer "as-is," without representations or warranties, either express or implied, including any warranties of merchantability or fitness for a particular purpose.
5. ANCILLARY SERVICES; THIRD PARTY PRODUCTS.
5.1 Support Services. As part of the Subscription Services, Pluto will, subject to the terms and conditions of this Agreement, provide Customer with those support and maintenance services for the Subscription Services described in Exhibit A attached hereto.
5.2 Professional Services. Pluto and Customer may enter into SOWs or Orders under this Agreement for the provision of Professional Services. If Pluto provides Professional Services to Customer, Customer’s rights to access and use Customizations resulting from such Professional Services are subject to the limitations and restrictions set forth in Section 2 (Services) of this Agreement.
5.3 Pluto API. Pluto may make an application programming interface or other similar development tools available within an online Service which establishes an interface with such Service ("Pluto API"). Unless Customer has entered into a separate developer agreement with Pluto and Pluto has provided Customer with an application ID for authentication purposes, Customer shall not use or enable a third party to use any Pluto API: (a) in a manner that causes Customer to exceed the limits of its authorized use of the applicable Service as set forth in this Agreement or an applicable Order; or (b) to access a Pluto account not otherwise controlled by Customer.
5.4 Free Services. Pluto may make a Service available with a clear and conspicuous written notice specifying that the Service is provided free of charge, on a trial basis and/or to be used at your own risk ("Free Services"). Notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that: (a) Free Services are made available without any support, maintenance, warranty, commitment to availability, security, or accuracy, or other related obligation of any kind under this Agreement, unless otherwise required by applicable law; (b) Free Services may not include or allow access to all features and functionality available to paying customers; (c) Pluto may terminate the use of a Free Service at any time, unless otherwise specified in writing, and Pluto will not be liable for such termination; (d) data, information, and content submitted to a Free Service may be permanently lost, and Pluto will not be liable for such loss; and (e) if Customer has not provided a billing address to Pluto in connection with its access to and use of Free Services, all notices required under this Agreement will be sent via email.
5.5 Third Party Products. If Customer separately procures services, applications, or online content from a third party ("Third Party Products") for use with the Services, any such use is subject to the end-user license or use agreement that Customer accepts from or establishes with the third party. Third Party Products are not Services and, as between the parties, Pluto has no liability with respect to Customer’s procurement or use of Third Party Products.
6. FEES AND PAYMENT.
6.1 Fees. Customer will pay Service fees specified in each Order or SOW. All Orders are noncancelable and Service fees are nonrefundable once paid except as otherwise expressly provided in this Agreement or the applicable Order or SOW. Pluto may increase the unit price specified in an Order for any Renewal Term upon written notice to Customer (including via email), provided that if the number of units purchased by Customer for such Renewal Term is equal or greater than the number of units up for renewal, then such notice must be provided at least forty-five (45) days prior to the start of the Renewal Term. Notwithstanding the forgoing or anything contained herein to the contrary, unless otherwise set forth in the applicable Order or otherwise agreed upon by the parties in writing, and unless Pluto provides the pricing adjustment notice pursuant to the preceding sentence, the pricing for any Subscription Services will be adjusted for each Renewal Term to Pluto’s then-current standard pricing for such Subscription Services.
6.2 Payment. Unless otherwise provided in the applicable Order or SOW, Pluto will charge Customer for Subscription Service fees on an annual basis in advance and Professional Service fees on a time and materials basis monthly in arrears, and all amounts due under this Agreement are payable in United States dollars net thirty (30) days from the date of the invoice. Customer agrees to promptly notify Pluto in writing of any changes to its billing information during any Term. Pluto reserves the right to correct any billing errors or mistakes that Pluto identifies in an invoice or after a payment is received. Customer shall remit payments by check, wire or ACH. Credit card payments are not accepted unless agreed upon by Pluto on a case-by- case basis. Pluto may accept payment in any amount without prejudice to Pluto’s right to recover the balance of the amount due under an Order or SOW or to pursue any other right or remedy. Amounts due to Pluto from Customer shall not be withheld or offset against amounts due or alleged to be due to Customer from Pluto. Except as prohibited by law, Pluto may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. If Customer requires a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect, or delay Customer’s obligation to pay any amounts due hereunder.
6.3 Taxes. Other than income taxes imposed on Pluto, Customer will bear all taxes, duties, VAT, and all other governmental charges (collectively, "Taxes") resulting from this Agreement. If Customer is exempt from any applicable Taxes, Customer will provide evidence reasonably satisfactory to Pluto of Customer’s tax-exempt status and, after receipt of such evidence, Pluto will not charge Customer any Taxes from which it is exempt. If it is determined that payments due under this Agreement are subject to withholding Taxes, Customer shall notify Pluto prior to deducting any such Taxes. Customer shall: (a) only withhold amounts required under law; (b) make timely payment to the proper taxing authority of such withheld amount; and (c) provide Pluto with proof of such payment within thirty (30) days following that payment.
6.4 Affiliates. Customer’s Affiliates may purchase Services under this Agreement by executing an Order or SOW. Each Order or SOW is a separate contract between Pluto and the Affiliate that executes it, and such Affiliate will be deemed "Customer" as used in this Agreement with respect to such Order or SOW.
7.1 Confidential Information. "Confidential Information" means all non-public, proprietary, business, technical, legal, or financial information disclosed or learned in connection with this Agreement that the Disclosing Party has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the Receiving Party would clearly understand it as confidential. Confidential Information includes Pluto Properties with regard to Pluto and Customer Content with regard to Customer. Notwithstanding the foregoing definition, Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to the Receiving Party; (b) information that becomes generally known to the public (other than through a breach of this Section 7 (Confidentiality) by the Receiving Party) after disclosure to the Receiving Party; (c) information that was in the Receiving Party’s possession free of any obligation of confidentiality prior to disclosure by the Disclosing Party; (d) information that is rightfully received by the Receiving Party from a third party without any restriction on disclosure; or (e) information that was independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS." EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
7.2 Use and Disclosure of Confidential Information. The Receiving Party: (a) will not use the Disclosing Party’s Confidential Information for any purpose except as permitted under this Agreement; (b) will not disclose, give access to, or distribute any of the Disclosing Party’s Confidential Information to any third party, except to the extent expressly authorized in this Agreement or a separate written agreement signed by the Disclosing Party; and (c) will take reasonable security precautions (which will be at least as protective as the precautions it takes to preserve its own Confidential Information of a similar nature) to safeguard the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees, directors, Affiliates, advisors, agents, contractors, and other representatives ("Representatives") who need to know such information in order to exercise their respective rights and obligations hereunder, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as those set forth in this Agreement. The Receiving Party will be responsible for its Representatives’ disclosure or use of the Disclosing Party’s Confidential Information in violation of this Section 7 (Confidentiality). The Receiving Party will promptly notify the Disclosing Party in writing upon discovery of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information, or any other breach of this Section 7 (Confidentiality), by it or its Representatives. The Receiving Party’s obligations set forth in this Section 7 (Confidentiality) will remain in effect during the Term and for three (3) years after termination of this Agreement. The disclosure of Confidential Information to the Receiving Party does not grant or convey any right of ownership of such Confidential Information.
7.3 Required Disclosures. The Receiving Party may disclose Confidential Information to the extent required by law or legal process, provided, however, the Receiving Party will (unless prohibited by law or legal process): (a) give the Disclosing Party prior written notice of such disclosure to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
7.4 Return and Deletion. Upon written request by the Disclosing Party, the Receiving Party will, without undue delay: (a) either return or destroy all tangible documents and media in its possession or control that contain the Disclosing Party’s Confidential Information; (b) delete electronically stored Confidential Information of the Disclosing Party in its possession or control; and (c) certify its compliance with this Section 7.4 (Return and Deletion) in writing. Notwithstanding the foregoing: (x) the Receiving Party will not be obligated to render unrecoverable Confidential Information of the Disclosing Party that is contained in an archived computer system backup made in accordance with the Receiving Party’s legal and financial compliance obligations or security and disaster recovery procedure; and (y) Pluto shall return and delete Customer Content as set forth in Section 11.4 (Return and Deletion of Customer Content). Any such retained Confidential Information will remain subject to this Section 7 (Confidentiality).
7.5 Remedies. The Receiving Party acknowledges that any actual or threatened breach this Section 7 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief to prevent or mitigate any breaches of this Section 7 (Confidentiality) with respect to the Disclosing Party’s Confidential Information or any damages that may otherwise result from those breaches.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Authority and Compliance Warranty. Pluto represents and warrants that it has the necessary authority to enter into this Agreement and that Pluto shall comply with any United States laws and regulations to the extent such laws and regulations apply to Pluto’s provision of the Services under this Agreement. For the avoidance of doubt, Pluto shall not be responsible for Customer’s compliance with any laws and regulations applicable to Customer and its industry.
8.2 Limited Warranty for Subscription Services. Pluto represents and warrants that the Subscription Services will operate during the applicable Term substantially as described in the applicable Documentation. Upon receipt of Customer’s written notice of any alleged failure to comply with this warranty, Pluto will use commercially reasonable efforts to cure or correct the failure. If Pluto has not cured or corrected the failure within thirty (30) days following its receipt of such notice, then Customer may terminate the applicable Order and Pluto shall issue a refund of prepaid fees covering the terminated portion of the Subscription Services. Notwithstanding the foregoing, this warranty will not apply to any failure due to a defect in or modification of a Subscription Service that is caused or made by Customer, any User, or any person acting at Customer’s direction. This Section 8.2 (Limited Warranty for Subscription Services) sets forth Customer’s exclusive rights and remedies and Pluto’s sole liability in connection with this warranty.
8.3 Limited Warranty for Professional Services. Pluto represents and warrants that the Professional Services will be provided in a competent and workman like manner in accordance with the Order or SOW, as applicable. Customer must notify Pluto in writing of any alleged failure to comply with this warranty within thirty (30) days following delivery of the Professional Services. Upon receipt of such notice, Pluto will either: (a) use commercially reasonable efforts to cure or correct the failure; or (b) terminate the Professional Services and issue a refund of prepaid fees covering the terminated portion of the Professional Services. This Section 8.3 (Limited Warranty for Professional Services) sets forth Customer’s exclusive rights and remedies and Pluto’s sole liability in connection with this warranty.
8.4 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, PLUTO MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PLUTO SPECIFICALL Y DISCLAIMS ALL IMPLIED W ARRANTIES OF MERCHANT ABILITY , FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH LAWS, NON-INFRINGEMENT, AND ACCURACY, AND PLUTO DOES NOT WARRANT THAT THE SERVICES OR THIRD-PARTY APPLICATIONS AND SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
9.1 By Pluto. Pluto will defend Customer and its respective officers, directors, and employees ("Customer Indemnified Parties") from and against any claims, demands, proceedings, investigations, or suits brought by a third party alleging that Customer’s use of the Services or Customizations in accordance with this Agreement infringes any third party intellectual property rights (each, a "Claim Against Customer"). Pluto will indemnify Customer Indemnified Parties for any finally awarded damages or settlement amount approved by Pluto in writing to the extent arising from a Claim Against Customer, and any reasonable attorneys’ fees of Customer associated with initially responding to a Claim Against Customer. Notwithstanding the foregoing, Pluto will have no obligation under this Section 9.1 (By Pluto) to the extent any Claim Against Customer arises from: (a) Customer’s use of the Services or Customizations in combination with technology or services not provided by Pluto, if the Services or Customizations or use thereof would not infringe without such combination; (b) Customer Content; (c) Pluto’s compliance with designs, specifications, or instructions provided in writing by Customer if such infringement would not have occurred but for such designs, specifications, or instructions; or (d) use of the Services or Customizations by Customer after notice by Pluto to discontinue use. If Customer is enjoined or otherwise prohibited from using any of the Services or Customizations or a portion thereof based on a Claim Against Customer, then Pluto will, at Pluto’s sole expense and option, either: (x) obtain for Customer the right to use the allegedly infringing portions of the Service or Customizations; (y) modify the allegedly infringing portion of the Service or Customizations so as to render it non-infringing without substantially diminishing or impairing its functionality; or (z) replace the allegedly infringing portions of the Service or Customizations with non-infringing items of substantially similar functionality. If Pluto determines that the foregoing remedies are not commercially reasonable or possible, then Pluto will terminate the applicable Order or SOW and issue a refund of prepaid fees covering the terminated portion of the applicable Service.
9.2 By Customer. Customer will defend Pluto and Pluto’s Affiliates providing the Services, and their respective officers, directors, and employees ("Pluto Indemnified Parties") from and against any claims, demands, proceedings, investigations, or suits brought by a third party arising out of Customer Content or Customer’s use of the Services or Customizations in violation of applicable law (each, a "Claim Against Pluto"). Customer will indemnify Pluto Indemnified Parties for any finally awarded damages or settlement amount approved by Customer in writing to the extent arising from a Claim Against Pluto, and any reasonable attorneys’ fees of Pluto associated with initially responding to a Claim Against Pluto.
9.3 Conditions. The indemnifying party’s obligations under this Section 9 (Indemnification) are contingent on the indemnified party: (a) promptly providing written notice of the claim to the indemnifying party, provided that the indemnifying party shall not be excused from its indemnity obligations for the indemnified party’s failure to provide prompt notice except to the extent that the indemnifying party is materially prejudiced thereby; (b) giving the indemnifying party sole control of the defense and settlement of the claim, provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party; and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim. The indemnified party may participate in the defense of the claim at its sole cost and expense. This Section 9 (Indemnification) sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy for, any type of claim or action described in this Section 9 (Indemnification).
10. LIMITATIONS OF LIABILITY.
10.1 TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY , ARISING UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
10.2 TO THE EXTENT PERMITTED BY LAW, EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO PLUTO UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
10.3 THE FOREGOING EXCLUSIONS AND LIMITS IN THIS SECTION 10 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO LIABILITY OR OBLIGATIONS ARISING UNDER SECTIONS 2.2 (RESTRICTIONS) OR 9 (INDEMNIFICATION), INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR CUSTOMER’S OBLIGATION TO PAY FOR SERVICES OR TAXES UNDER THIS AGREEMENT.
11. TERM AND TERMINATION.
11.1 Term. This Agreement will remain in effect until terminated as set forth herein or by the parties’ mutual written agreement. Orders will remain in effect for the Term of the Services specified in such Order. EACH SERVICE WITH A SUBSCRIPTION-BASED TERM ON AN ORDER WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR RENEWAL TERMS (each, a "Renewal Term") UNLESS THE PARTIES AGREE OTHERWISE IN THE ORDER OR A PARTY PROVIDES THE OTHER PARTY WRITTEN NOTICE (INCLUDING VIA EMAIL) OF NON-RENEWAL AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM. For the avoidance of doubt, any purchases of non-subscription or one-time Services made via an Order will not automatically renew. Each SOW will remain in effect for the period specified therein. If no period is specified, the SOW will terminate once the Professional Services set forth in the SOW have been completed.
11.2 Termination for Cause. Either party may terminate a Service or this Agreement immediately upon written notice if the other party breaches any material provision of an Order, SOW, or this Agreement, and fails to cure the breach within thirty (30) days of such written notice from the non-breaching party.
11.3 Effect of Termination. Upon termination of this Agreement for any reason: (a) all Orders and SOWs under this Agreement will terminate; and (b) all rights and obligations of the parties hereunder will cease (except as set forth in Section 11.6 (Survival)). If Customer terminates a Service or this Agreement for Pluto’s uncured breach pursuant to Section 11.2 (Termination for Cause), Pluto shall issue a refund of prepaid fees covering the terminated portion of each Services’ respective Term. If Pluto terminates a Service or this Agreement for Customer’s uncured breach pursuant to Section 11.2 (Termination for Cause), Customer shall pay any outstanding amounts payable under this Agreement for the Term applicable to any terminated Service. Customer will remain obligated to pay for Professional Services rendered through, or payable as of, the effective date such Professional Services are terminated.
11.4 Return and Deletion of Customer Content. At any time during the Term, Customer may download a backup copy of Customer Content (with file attachments in their native formats and all other Customer Content in an industry standard export format) from an online Service by using a self-service feature, or may request such backup copy by written notice to Pluto if such feature is not available. Upon Customer’s written request at the time of termination or expiration of any Term, Customer’s SysAdmin will be allowed read-only access to an online Service for thirty (30) days following such date of termination or expiration for the sole purpose of downloading a backup copy of Customer Content. Following such thirty (30) day period, Pluto may delete and render Customer Content unrecoverable. Notwithstanding the foregoing, Pluto may retain copies of Customer Content as part of records, documents, or broader data sets in accordance with Pluto’s legal and financial compliance obligations, provided that Pluto continues to comply with all the requirements of the Agreement in relation to any such retained Customer Content.
11.5 Suspension. Pluto may suspend Customer’s access to any Service immediately if: (a) Customer fails to make a payment for more than fifteen (15) days following its due date; or (b) Customer has, or Pluto reasonably suspects based on documented evidence that Customer has, breached Section 2.2 (Restrictions) or misappropriated or infringed Pluto’s intellectual property or proprietary rights.
11.6 Survival. The following Sections will survive termination or expiration of this Agreement: 3.2 (Processing); 4 (Intellectual Property and Proprietary Rights); 5.4 (Free Services); 6.1 (Fees); 6.2 (Payment); 7 (Confidentiality); 9 (Indemnification); 10 (Limitations of Liability); 11.4 (Return and Deletion of Customer Content); 11.6 (Survival); and, to the extent necessary to effectuate the foregoing, 12 (General).
12.1 Insurance. Pluto will procure and maintain at its expense commercially reasonable insurance coverage during the Term, evidenced by Pluto’s certificate of insurance, available upon written request.
12.2 Publicity. Unless Customer has notified Pluto to the contrary in writing (including via email), Pluto may disclose Customer as a customer of Pluto or the named Services used by Customer, or may use Customer’s name and logo on the Site or in Pluto’s promotional materials.
12.3 United States Government End-Users. The Services provided by Pluto are "commercial items" consisting in part of "commercial computer software" and "computer software documentation," as such terms are used in the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS). In accordance with FAR 12.211 (Technical data) and FAR 12.212 (Computer software), and DFARS 227.7102 (Commercial items, components, or processes) and DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the rights of the United States government to use, modify, reproduce, release, perform, display, or disclose computer software, computer software documentation, and technical data furnished in connection with the Services will be pursuant to the terms of this Agreement. This United States government rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation, or technical data.
12.4 Export Compliance. Each party shall comply with United States export control laws and regulations. Without limiting the foregoing: (a) Customer acknowledges that the Services, Documentation, and Customizations may be subject to United States Export Administration Regulations; (b) Customer will not permit Users to access or use any Service, Documentation, or Customization in a United States embargoed country; and (c) Customer is responsible for complying with any local laws and regulations which may impact Customer’s right to export, access, or use the Services, Documentation, and Customizations.
12.5 Notices. Except where this Agreement permits notice via email, all notices provided by a party under this Agreement must be in writing and sent via internationally recognized delivery service or certified United States mail. Notices sent via email will be deemed given one (1) business day after being sent, and notices sent via any other authorized delivery method will be deemed given three (3) business days after being sent. Notices must be addressed as follows: if to Pluto, Attn: Legal, P.O. Box 482, Golden, CO 80402, and for notices permitted to be sent via email, to firstname.lastname@example.org; and, if to Customer, Attn: Legal at the billing address on record with Pluto that was provided by Customer, and for notices permitted to be sent via email, to the then-current SysAdmin(s) email address.
12.6 Assignment. Either party may assign this Agreement and any Orders or SOWs in connection with a merger or similar transaction or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement or any Orders or SOWs to a third party without the advance written consent of the other party. Subject to the foregoing and notwithstanding any prohibitions on transferability under this Agreement, the assigning party shall notice the non-assigning party of any permitted assignment and this Agreement and any Orders or SOWs will bind and inure to the benefit of the parties, their successors, and their permitted assigns.
12.7 Force Majeure. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control, provided that the party suffering from any such conditions shall use reasonable efforts to mitigate against the effects of such conditions.
12.8 Amendment; Waiver. Unless otherwise expressly stated herein, this Agreement and any Orders or SOWs may be modified only by a written agreement executed by an authorized representative of each party. The waiver of any breach of this Agreement or of any Order or SOW will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach.
12.9 Enforceability. If any provision of this Agreement or any Order or SOW is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement or the relevant Order or SOW is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement or any Order or SOW, the entire Agreement or the relevant Order or SOW will be considered null and void.
12.10 Governing Law. This Agreement and any Orders and SOWs are governed by the laws of the State of Colorado, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Denver, Colorado for any dispute arising out of this Agreement or any Orders or SOWs.
12.11 Entire Agreement; Conflict. This Agreement, together with the Policies, and any Orders and SOWs represent the entire agreement between Pluto and Customer with respect to the Services. In the event of any conflict between this Agreement and any Order or SOW, this Agreement will govern and control unless the Order or SOW expressly and specifically overrides terms or conditions of this Agreement. In the event of any conflict between this Agreement and any of the Policies, this Agreement will govern and control . With respect to any Services, terms and conditions included in the following items, whether submitted or executed before or after the Term start date, are null and void: (a) a Customer purchase order or similar document; (b) a Customer vendor registration form or online portal; and (c) any other contemporaneous or prior agreements or commitments regarding the Services or the other subject matter of this Agreement.
12.12 Counterparts. This Agreement may be executed in counterparts. Once signed, any unaltered reproduction thereof made by reliable means (e.g., photocopy, .pdf, email scan or facsimile) will be considered an original.
1. DEFINITIONS. Capitalized terms used but not defined in the Agreement shall have the meanings set forth in this Section 1:
1.1 "Error" shall mean a reproducible defect in the Subscription Services when operated in accordance with the Documentation, which causes the Subscription Services not to operate substantially in accordance with the Documentation.
1.2 "Resolution" shall mean a modification or workaround to the Subscription Services and/or Documentation and/or other information provided by Pluto to Customer intended to resolve an Error.
1.3 "Standard Business Day" means 9:00 a.m. to 5:00 p.m. (Mountain Time), Monday through Friday (excluding regular U.S holidays and Pluto holidays).
1.4 "Standard Support Hour" shall mean an hour during a Standard Business Day.
2. SUPPORT SERVICES PROVIDED.
2.1 Support. Pluto will provide online (e.g. chat, videoconference) support during the Standard Support Hours. Support will include the following:
(a) Clarification of functions and features of the Subscription Services;
(b) Clarification of the Documentation;
(c) Guidance in operation of the Subscription Services;
(d) Assistance in identifying and verifying the causes of suspected Errors in the Subscription Services; and
(e) Advice on bypassing identified Errors in the Subscription Services, if reasonably possible.
2.2 Resolution of Errors. For all inquiries received by Pluto during its Standard Support Hours, Pluto will provide an initial response according to the service level criteria in Table 1 below.
2.3 Travel and Other Expenses. Support Services provided hereunder shall be provided at Pluto’s principal place of business. Should Customer request that Pluto send personnel to any Customer facility to resolve any Error in the Subscription Services, Customer shall pay Pluto’s reasonable, pre-approved travel, meals, and lodging expenses. Under such circumstances, Customer shall also pay actual costs for supplies and other expenses reasonably incurred by Pluto and necessary for the Support Services, which are not of the sort normally provided or covered by Pluto, provided that Customer has approved in advance the purchase of such supplies and other expenses.
2.4 Exceptions. Pluto will provide the Support Services only for the Subscription Services. Pluto shall have no responsibility under this Agreement to fix any Errors to the extent arising solely out of or solely related to the following causes: (i) any Error caused by Customer or its Users, (ii) any Error or unavailability of the Subscription Services caused by use of the Subscription Services in any manner or in any environment inconsistent with its intended purpose, (iii) any of Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Subscription Services, (iv) any Customer Content, or (v) any network or connectivity issues. Any corrections performed by Pluto for such Errors shall be made, in Pluto’s reasonable discretion, at Pluto’s then-current time and material rates.
3. CUSTOMER RESPONSIBILITIES. Except for training services provided by Pluto to Customer pursuant to an agreed training engagement, Customer is responsible for ensuring that all Users are knowledgeable in the operation and use of the Subscription Services (pursuant to the Documentation).
Table 1 – Severity Levels Table
Pluto will assign a severity level to each service request upon receipt of an Error from Customer pursuant to the descriptions set forth in Table 1 below. In some cases, it may be appropriate to upgrade or downgrade the severity level from its initial assignment. For example, if a work-around is identified and implemented for a Critical level problem, the severity level will be downgraded to a Medium level. An incident number will be assigned to each service request upon receipt. This incident number will be reported to Customer and used as a means to track support status.
Response and Resolution
|CRITICAL||Subscription Services are inoperative or unusable. Critical or material impact on normal business operations.||Pluto will use commercially-reasonable efforts to contact Customer within 2 Standard Support Hours of the problem report. Pluto will use commercially-reasonable efforts to sustain Resolution activities as long as necessary during the Standard Business Day. Resolution will restore the Subscription Services to adequate operation as quickly as possible.|
|HIGH||Subscription Services are partially inoperative and there are no work-arounds available. Less critical but severely restrictive impact on normal business operations.||Pluto will use commercially-reasonable efforts to contact Customer within 6 Standard Support Hours of the problem report. Pluto will use commercially-reasonable efforts to resolve the issue. Resolution will restore the Subscription Services or incorrect function to adequate operation within a reasonable timeframe.|
|MEDIUM||Subscription Services are usable with limited functions. Work-around exists to prevent impact on business operations.||Pluto will use commercially-reasonable efforts to contact Customer within 10 Standard Support Hours of the problem report. Pluto will determine the activities necessary to resolve the problem and the timeframe in which Resolution can be completed. Customer may request that Resolution be accelerated. An accelerated schedule may result in additional fees.|
|LOW||Subscription Services are usable but problem has been identified and correction is required.||Pluto will use commercially-reasonable efforts to contact Customer within 24 Standard Support Hours of the problem report. Pluto will determine the activities necessary to resolve the problem and the timeframe in which Resolution can be completed. Customer may request that Resolution be accelerated. An accelerated schedule may result in additional fees.|
|SUGGESTION||Subscription Services are usable and is functioning properly. A change or enhancement has been suggested by Customer.||Pluto and Customer will mutually agree on a Resolution. Additional costs may apply.|