THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT 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 TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
You may not access the Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 1 December 2015. It is effective between You and Us as of the date of You accepting this Agreement.
"Acceptable Use Policy" means the PassKit policy for appropriate use of the Service. The most recent copy of such Acceptable Use Policy is available here: https://passkit.com/legal/acceptable-use-policy/.
"Account User" means an individual who is authorized by You to use the Service, and to whom You (or We at Your request) have supplied a login ID and password. Account Users may include Your employees, consultants, contractors and agents.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this Master Subscription Agreement.
"Customer Data" means electronic data and information uploaded by or for You via the Service or Processed by or for You using the Service.
"Documentation" means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via developer.passkit.com.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Order Form" means an ordering document specifying the Service to be provided hereunder that is entered into by and between You and Us, including any addenda, exhibits and schedules thereto.
"Processing", "Process" and "Processed" means any operation or set of operations performed upon Customer Data, whether or not by automated means, such as upload, collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, erasure or destruction.
"Professional Services" means consulting services, implementation services, configuration services, technical support services, and/or other professional services identified in the applicable Order Form or statement of work, and relating to the Service.
"Service" means the PassKit software as a service application(s) that are ordered by You under an Order Form and made available online by Us, as described in the Documentation. "Service" includes the PassKit Library, but excludes Third Party Applications.
"Third Party Applications" means a Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that are provided by You or a third party and interoperate with the Service.
"PassKit Library" means the latest version of PassKit's proprietary binary library made available by PassKit for purposes of enabling the Service.
"We," "Us" or "Our" means PassKit, Inc.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement.
2.1. Ordering. The specifics of Your order will be set forth on one or more Order Forms that reference this Agreement. Your execution of an Order Form constitutes a binding commitment to purchase the items described on such Order Form under the terms and conditions of this Agreement. All Order Forms accepted by PassKit that reference this Agreement are incorporated herein. Each Account User authorized by You shall be provided a separate login to the Service. An Account User's password may not be shared with any other individual. You are responsible for the confidentiality and use of Account User logins and passwords.
2.2. Provision of Service and Professional Services. We will (a) make the Service available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard technical support for the Service to You at no additional charge, and/or upgraded support if purchased, and (c) if purchased by Customer pursuant to this Agreement and applicable Order Form, provide Professional Services specified in such Order Form or applicable statement of work. We reserve the right, in Our sole discretion, to make any changes to the Service that We deem necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Service, (ii) the competitive strength of or market for the Service, or (iii) the Service's cost efficiency or performance; or (b) to comply with applicable law.
2.3. Protection of Customer Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed for preventing unauthorized access, use, modification or disclosure of Customer Data.
2.4. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, the access to Service is purchased as a subscription for the specific subscription term specified in the Order Form.
3.2. Usage Metrics. Service is subject to billing based on usage metrics, as specified or referenced in the applicable Order Form. The applicable metrics used to determine usage levels and related billing are included at: https://passkit.com/legal/.
3.3. Your Responsibilities. You will (a) be responsible for all activities conducted under Your and any Account Users' logins, and Your and all Account Users' compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which You acquired Customer Data and use Customer Data, (c) use the Service only in accordance with the Documentation, Acceptable Use Policy and applicable laws and government regulations, and (d) comply with terms of service of Third Party Applications with which You use or access the Service or transfer Customer Data from or to the Service, or add or merge additional data from such Third Party Applications with Customer Data.
3.4. Usage Restrictions. You will not (a) make the Service available to, or use the Service for the benefit of, anyone other than You, or Account Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service in a manner that violates applicable law, or any third party privacy rights or intellectual property rights , (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service, or for other competitive purposes or (j) reverse engineer the Service. We reserve the right to remove Your account on such Service and/or any mobile wallet items on Your account, if You are in breach of Section 3.3 or 3.4 of this Agreement or Your use of the Service (including any wallet passes on Your account) triggers Apple's or Google's (or another similar third party application) right to revoke their certificates issued to You for Apple Wallet or Android Pay, as applicable.
4.1. Third Party Applications and Your Data. If You install or enable a Third Party Application for use with the Service or Customer Data, You grant Us permission to allow the provider of that Third Party Application to access Customer Data as required for the interoperation of that Third Party Application with the Service. We are not responsible for any usage, transmission, disclosure, modification or deletion of Customer Data resulting from access by a Third Party Application.
4.2. Integration with Third Party Applications. The Service may contain features designed to interoperate with Third Party Applications. To use such features, You may be required to obtain access to Third Party Applications from their providers, and may be required to grant Us access to Your account(s) on the Third Party Applications. If the provider of a Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
5.1. Fees. You will pay all fees specified in Order Forms and statements of work. Except as otherwise specified herein or in an Order Form, (a) fees are based on the Service subscribed and the usage metrics specified in the applicable Order Form, (b) payment obligations are non- cancelable and fees paid are non-refundable, other than pursuant to Section 11.4 (Refund or Payment upon Termination), and (c) minimum purchase amount cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative reasonable document. If You provide credit card information to Us, You authorize Us to charge such credit card for all Service subscriptions and any Professional Services purchased via the Order Form for the initial subscription term and any renewal subscription term(s). Unless an Order Form or applicable statement of work specifies a different billing arrangement, fees are invoiced up front upon execution of the Order Form or applicable statement of work. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. Unless otherwise stated in the Order Form, all amounts payable shall be in the currency of the United States.
5.3. Suspension of Service and Acceleration. Your failure to pay any undisputed amounts due under this Agreement or any Order Form on a timely basis will be deemed material breach of this Agreement. If any amount owing by You under this Agreement or any Order Form is overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreements or Order Form (including any minimum contract value amount specified in the applicable Order Form) so that all such fees become immediately due and payable, and/or suspend applicable Service and/or Professional Services until all overdue amounts are paid in full. We will give You at least 14 days' prior notice that Your account is overdue, in accordance with Section 13.1 (Manner of Giving Notice), before any suspension. You will continue to be charged Service fees during any period of suspension. We will not exercise such acceleration or suspension rights specified above if You are disputing the applicable charges reasonably and in good faith, and are working with Us to resolve the dispute. If We must take action to collect overdue fees under this Agreement or any Order Form, You agree to pay all reasonable costs and expenses incurred by Us for collecting such overdue fees, including but not limited to, collection fees, reasonable attorney fees and court costs.
5.4. Taxes. Our 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"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.5. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6.1. Ownership of the Service. We (and Our licensors, where applicable) shall own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service. No rights are granted to You hereunder other than as expressly set forth herein, and We (and Our licensors, where applicable) reserve all rights not expressly granted herein.
6.2. License to Use the PassKit Library. We grant to You a worldwide, limited-term license to use the PassKit Library solely in connection with the Service and in accordance with this Agreement and related Documentation during the applicable subscription term of the Service.
6.3. Ownership of Customer Data. As between You and PassKit, You shall own any and all Customer Data. You shall be solely responsible for the accuracy and quality of any and all Customer Data and for establishing all terms and conditions applicable to Your audience. You hereby grant to PassKit a non-exclusive, royalty-free, non-transferable (except pursuant to a permitted assignment as provided in Section 13), worldwide license during the applicable subscription term to (a) access and use Customer Data solely for the purpose of providing the Service and any applicable Professional Services in accordance with this Agreement, and (b) make applicable Customer Data available to Third Party Application based on configuration of the Service by or for You or an Account User. Additionally, You understand that the technical processing and transmission of the Service, including any Customer Data, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and You consent to such transmission and changes.
6.4. Use of Customer Data. You are responsible for complying with all applicable laws relating to Your or any Account User's use of the Service, including, without limitation, privacy laws governing the Processing, of Customer Data via the Service. Without limiting the generality of the foregoing, You are solely responsible for: (a) ensuring that You and PassKit, acting on Your behalf, have the right to Process, use and share Customer Data via the Service; and (b) providing adequate notice to, and obtaining any necessary consents from, Your audience, end-users and any other applicable third parties, as required under applicable laws, with respect to the Customer Data Processed via the Service. Notwithstanding any other provision included in this Agreement, You acknowledge that the Service is not designed with security and access management for Processing any sensitive personally identifiable information, including, without limitation, government issued ID numbers, individual medical or health information (including protected health information under HIPAA), individual financial information, security codes, passwords, credit or debit card numbers, or "sensitive personal data" under the Directive 95/46/EC (each of the foregoing, "Prohibited Data"). You shall not, and shall not permit any Account User to, provide any Prohibited Data or Process any Prohibited Data via the Service, and shall ensure that no Customer Data constitutes or contains Prohibited Data. PassKit and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Data that violates any of the terms of this Agreement or any applicable law.
6.5. Usage Data. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from Your, and Account Users' use of the Service ("Usage Data") as aggregated with usage data from PassKit's other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of PassKit's services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular customer or end-user of Customer and shall not be deemed Customer Data.
6.6. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate into the Service and/or Professional Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Service and/or Professional Services.
6.7. Federal Government End Use Provisions. This Section 6.7 applies only if You are the United States federal government or one of its agencies. We provide the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
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. Your Confidential Information includes Your Data. Our Confidential Information includes the Service and all non-public information relating to the Service. Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing 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.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party may not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party may disclose Disclosing Party's Confidential Information to its Affiliate's or its investors, and their respective officers, directors, principals, employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement. To the extent that the Receiving Party desires to make a disclosure to any persons other than its officers, directors, principals, employees, attorneys and accountants, as condition precedent to disclosure, such recipient must execute a confidentiality agreement substantially similar to this Section before disclosure is made.
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 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.
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that (a) the Service will perform materially in accordance with the applicable Documentation, and (b) subject to Section 4.2 (Integration with Third Party Applications), We will not materially decrease the functionality of the Service during a subscription term. For any breach of an above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination). Our warranties do not cover any breach that is caused by (i) the acts or omissions of You or any Account User, (ii) any Third Party Applications, (iii) any modifications of the Service by or for You, or (iv) failure to timely implement any modifications, upgrades, replacements or enhancements made available Us to You at no additional cost.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR APPLICATIONS.
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the as made available by Us under this Agreement to You directly infringes or misappropriates such third party's valid and issued patent, registered copyright or registered trademark under the laws of a country to which the Service is made available by Us to You (a "Claim Against You"), and will indemnify You from any damages, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days' written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from or relates to: Customer Data, a Third Party Application, Your breach of this Agreement, any modifications of the Service by or for You, or failure to timely implement any modifications, upgrades, replacements or enhancements made available by Us to You at no additional cost.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Customer Data or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights, violates Your obligations to such third party or violates applicable law (a "Claim Against Us"), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 9.
10.1. Limitation of Liability. NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT). YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.1 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PASSKIT WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PASSKIT HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THIS AGREEMENT.
10.2. Exclusion of Consequential and Related Damages. EACH PARTY AGREES THAT THE CONSIDERATION WE ARE CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY A PARTY OF THE OTHER PARTY'S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.
11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Purchased Subscriptions. The term of each subscription to the Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to one year (unless a different renewal term is specified in the Order Form, in which case, the renewal term specified in the Order Form will apply), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The applicable fee for any automatic renewal term will be determined using PassKit's then current list price applicable for such renewed Service.
11.3. Termination. A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) 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. Upon termination of this Agreement, all rights, licenses, consents and authorizations granted by a party hereunder will immediately terminate, other than those expressly specified to continue after termination.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Surviving Provisions. Sections 5 (Fees and Payment), 6 (Proprietary Rights and Licenses; Customer Data), 7 (Confidentiality), 8.3 (Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), and 13 (General Provisions) will survive any termination or expiration of this Agreement.
If Your order includes Professional Services as specified on an Order Form or an executed statement of work, We will perform such Professional Services described on such Order Form and/or in a statements of work. Each Order Form for Professional Services and statement of work will set forth the following, as applicable: (a) the Professional Services to be performed, (b) any specifications or other requirements pertaining to such Professional Services, (c) fees for such Professional Services, (d) any applicable assumptions or conditions and (e) any other terms mutually agreed upon by the parties. Professional Services are purchased for the engagement term specified in the applicable Order Form or statement of work. If the engagement term is not specified in the Order Form or statement of work, all ordered Professional Services will expire within 12 months from the date of the applicable Order Form or statement of work, and any unused hours will expire at such time. Unless expressly stated otherwise in the applicable statement of work, We will retain all right, title and interest in and to the Professional Services performed (including any and all intellectual, property rights therein). Your usage rights to the results of such Professional Services shall be the same as the rights granted to You under the Agreement with respect to the Service to which such Professional Services pertains. Notwithstanding the foregoing, Your rights to Customer Data and Your Confidential Information remain as specified in this Agreement.
13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Service system administrator designated by You. Notwithstanding the foregoing, We occasionally may need to notify You and Account Users of important announcement regarding operation of the Service, such as notice of downtime, and may provide such information by online notice.
13.2. Modifications. We reserve the right to change or modify any of the terms and conditions contained in this Agreement, the Service or any policy governing the Service at any time by posting the new agreement to Our site located at: http://passkit.com/legal. We will use reasonable efforts to notify you of the changes, which may include posting an announcement on the Our site, informing you through your account, in-product notices or via email. Your continued use of the Service following Our posting or notice of the change(s) will constitute Your acceptance of such change(s).
13.3. Marketing. You hereby authorize Us to use Your name and logo to identify You as Our customer on Our website, and as a part of a general list of Our customers for use and reference in Our corporate, promotional and marketing literature. Additionally, You agree to participate in an PassKit case study regarding Your use of the Service.
13.4. Export Compliance. The Service, the PassKit Library and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or PassKit Library in a U.S.-embargoed country (currently Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, PassKit Library or Customer Data are prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Service, the PassKit Library or Customer Data to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (c) You shall not and shall not permit any User to access or use the Service, the PassKit Library or Customer Data in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You or any Users are located.
13.5. Force Majeure. Each party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third Party Applications, failure of any third party operating systems, platforms, applications or networks not under reasonable control of PassKit, or other similar occurrence.
13.6. 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 this Agreement in its entirety (including all Order Forms), without the other party's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7. Governing Law; Jurisdiction. Each party agrees to the laws of the State of Delaware without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts located in Delaware, United States of America.
13.8. Relationship of the Parties; Non-exclusivity. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties. Nothing in this Agreement will be construed to prevent Us from marketing, licensing, selling or otherwise providing Service or any aspects of PassKit's technology or services to any third party. Nothing in this Agreement will be construed to prevent the You from obtaining services similar to the Service from a third party.
13.9. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.10. Waiver. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
13.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.12. Electronic Signature. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures.
13.13. Entire Agreement. This Agreement includes all Order Forms agreed to by the parties that reference this Agreement and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof, and therefore the parties expressly disclaim all prior discussions, emails, RFPs and/or agreements between the parties. This Agreement supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by PassKit. The terms on any purchase order or similar document submitted by You to Us will have not effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form or statement of work, (ii) any exhibit, schedule or addendum to this Agreement, (iii) the body of this Agreement, and (iv) Documentation.