Pakked Inc (“Pakked”) has developed a web-based service that is designed to provide certain features and functionalities designed to facilitate enterprise project teams working within a collaborative visual workspace in real time and manage associated collaborative workflows (the “Pakked Service”).  

Pakked Service has two different types of users depending on the Pakked Service used:  

• Customers who use the free version of the Pakked Service are called “Freemium Users.” While Freemium Users can access and use the Pakked Service, they have access to a more limited set of Pakked Service features and functionality than Subscribers.  

• Customers who use the Pakked Service as part of a paid Pakked subscription plan (“Subscription Plan” or “Additional Services”) are called “Subscribers.”  

• The two types of users are collectively referred to as “Customers” purposes of these Terms and Conditions.  

The Terms and Conditions (“Terms” or “Agreement”) are a legal agreement between Pakked and Customer governing the right to access and/or use Pakked Service whether directly from Pakked or indirectly through one of its resellers (in either case, “Seller”). 

By accepting the Terms, Customer represents and warrants that Customer is over the age of 16, has the authority to enter into this Agreement, and is agreeing to be bound by all the Terms. By use or access of the Pakked Service, Customer agrees to the Terms. No one should access or use the Pakked Service without first agreeing to the Terms.  If Customer has a separate written agreement with Pakked for its access and use of the Pakked Service (“Existing Agreement”), then to the extent that the terms and conditions of the Existing Agreement directly contradict the Terms, the terms and conditions of the Existing Agreement will govern.  

1. Services  

1. 1.1 Orders. The details of a Subscription Plan shall be as set forth in an ordering document offered by Seller and accepted by Subscriber (“Order”) and will set forth the specific details and parameters of the Pakked Service being ordered, including, as applicable, the Subscription Type (as defined below) and Subscription Term (as defined below), Users, Training, Maintenance and Support, Uptime Commitment, and any other details, restrictions, or limitations. Orders may be in paper form or may be provided digitally, including through a Pakked E-commerce platform, and upon mutual acceptance will be incorporated by reference into, and made a part of, this Agreement. In the event that Seller agrees to accept an Order submitted on Subscriber’s form of ordering document (purchase orders, etc.), any additional or conflicting terms provided thereon will be expressly rejected. Upon execution (through the mechanism provided in the applicable offer), Orders shall be deemed incorporated by reference into, and made a part of this Agreement.  

2. 1.2 Provision of Pakked Service. Pakked shall make the Subscription Plan available to Subscriber during the term identified in the Order (“Subscription Term”) pursuant to this Agreement. The Subscription Plan includes those components and features, including third-party software (“Third-Party Software”), set forth or referenced in the subscription package identified in each Order (a current list of which is available online at https://www.pakked/pricing/ (the “Subscription Type”), along with all then-current user manuals or other documentation provided by Pakked (“Documentation”). As applicable, all use of Third-Party Software shall be governed by the respective licenses for such Third-Party Software, a partial list of which may be found at [please update link]. Pakked shall have the right to modify the Pakked Service, including adding or subtracting Third-Party Software, components, features or functionality, at any time without notice to Customer. Any rights identified in the applicable package or Order as evaluation, beta, test, trial, or similar designation (“Eval Rights”) are provided on limited terms and are offered on an as-is, where-is basis without warranty, liability, or service commitment of any kind, and accordingly Sections 1.5, 1.6, 3.4, 7.1, and 8.1, nor any other commitment or obligation of Pakked with respect thereto shall not apply. Unless otherwise specified in the applicable Order or expressly renewed by mutual agreement in writing, Eval Rights expire automatically after ninety (90) days. Unless otherwise specified in the applicable Order, all other Subscription Types are granted to Subscribers for an initial Subscription Term of one (1) year, which term will automatically renew for subsequent one (1) year periods unless either party provides written notice of non-renewal at least thirty (30) days prior to expiration. The Subscription Term commences upon execution of an Order.  

3. 1.3 Authorized Users. “Users” means individuals authorized by Customer to use the Pakked Service who have been supplied user identifications and passwords by Customer (or by Pakked at Customer’s request), including Customer’s employees, consultants, clients, and third-party collaborators. An Order may designate specific types of Users. The Pakked Service provided under a Subscription Plan may be accessed and used only by Authorized Users (including a limit to any specific type of User); provided however, that Customer may add additional Users at the pricing set forth in the applicable Order, pro-rated for the remainder of the applicable annual period at the time such additional Users are added.   Customer shall be responsible and liable for all and acts and omissions of its Users. 

4. 1.4 Training. Pakked may provide training to Subscribers in the Pakked Service’s use if described in an Order (“Training”).  

5. 1.5 Availability of Pakked Service. Pakked will use commercially reasonable efforts consistent with prevailing industry standards to maintain the Pakked Service to be available 24 hours per day, 7 days per week, including holidays. The Pakked Service may be temporarily unavailable for scheduled maintenance (conducted weekly, typically in connection with a new release or service pack, but not during Support Hours (as defined below)), for unscheduled emergency maintenance, or because of other causes beyond Pakked’s reasonable control. Notwithstanding the above, in no event will Pakked be liable to a Freemium User or any third party for any modification, suspension or discontinuance of any part of the Pakked Service. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PAKKED SERVICE IS PROVIDED ON AN “AS AVAILABLE” BASIS.  

6. 1.6 Maintenance and Support. Pakked shall provide Freemium Users and Subscriber with the maintenance and support for the Pakked Service (“Maintenance and Support”) found at https://pakked.discourse.group/t/pakked-support-policy/28 which Pakked may update from time to time.   

   1. a. Subscriber acknowledges that Pakked shall provide Subscriber with access to bug fixes, updates and improvements to the Pakked Service that are released by Pakked for general availability to its other commercial customers (“Updates”) on a continuous basis. All Updates will be deemed to be part of the Pakked Service for purposes of this Agreement and subject to all of the terms, conditions and restrictions of this Agreement. In connection with such Updates, Subscriber may be required to implement upgrades or modifications to Subscriber’s networks and other systems. Pakked shall use reasonable efforts to provide Subscriber with advance notice of any upcoming Updates which require modifications to Subscriber’s systems and shall work with Subscriber’s System Administrator (as defined below) to coordinate the release schedule and installation of such Updates. Subscriber shall implement all required modifications to Subscriber’s systems in accordance with the timing and conditions specified by Pakked, at Subscriber’s sole expense.   

   2. b. Except as set forth above, no other support services are provided by Pakked. Pakked will have no obligation to provide maintenance or support services of any kind to any Freemium User or for problems in the operation or performance of the Pakked Service to the extent caused by any of the following (“Customer-Generated Error”): (i) any data, files, database or non- Pakked software used in conjunction with the Pakked Service; (ii) Customer’s use of the Pakked Service other than as authorized in the applicable  Subscription Plan ; or (iii) Customer’s use of an outdated Pakked Service.. If Pakked determines that it is necessary to perform services for a problem in the operation or performance of the Pakked Service that is caused by a Customer-Generated Error, then Pakked will notify Customer as soon as Pakked is aware of such Customer-Generated Error. Pakked will not commence any such services until approved by Customer in writing. If such services are performed, Pakked will have the right to invoice Customer at Pakked then-current professional services rates for such services performed by Pakked.  

7. 1.7 Additional Services. Pakked may provide implementation services to Subscribers with respect to the Pakked Service and may provide other services to Subscribers as set forth in an Order (“Additional Services”).  

8. 1.8 Additional Applications. To the extent that Customer uses any third-party applications (“Apps”) in conjunction with Pakked Service, such Apps are strictly governed by their respective terms and conditions. Customer is solely responsible for (i) acquiring the license and rights to use the Apps, and (ii) accepting and complying with the applicable terms and conditions and privacy policy of the Apps.  Pakked does not have (and shall not have) control over the security measures, data protection practices, or any potential vulnerabilities within (or arising out of) the Apps and any security breaches, data loss, or incidents arising from the use of the Apps shall be the full responsibility of the Customer. Pakked does not warrant or support the Apps and disclaims any and all warranties or support obligations, and shall have no responsibility, liability or indemnification obligations for any claims, losses or damages arising out of or in connection therewith or use of the Apps.  Pakked does not guarantee compatibility with the Apps and Pakked shall not be responsible for any changes or new developments in the Apps which may interrupt Customer’s use or interaction with the Pakked Service or Apps. Customer is solely responsible for any use, service, or maintenance of Apps. Customer shall indemnify, defend and hold harmless Pakked for any claim, damage, loss or liability arising from Customer use of Apps.    

2. USE OF THE PAKKED SERVICE  

1. 2.1 Use. The Pakked Service is intended for business use only. Customer shall (a) use the Pakked Service only for Customer’s internal business purposes, which may include collaboration with outside agencies on Customer’s projects and collaboration with Customer’s clients; (b) be responsible and liable for its Users’ compliance with the applicable Subscription Type and the terms and conditions of this Agreement and any additional requirements and limitations set forth in the applicable Order; and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Pakked Service and shall promptly notify Pakked of any such unauthorized access or use of which it becomes aware.  

2. 2.2 Restrictions. Customer shall not (and shall not permit its Users to) use the Pakked Service for consumer purposes, as the Pakked Service is intended for businesses use only. Customer shall not use the Pakked Service or any component thereof except as expressly authorized in the Terms, an applicable Order, and by applicable law. Customer shall not, and shall not instruct or permit any person, directly or indirectly, to: (a) reverse engineer, decompile or disassemble the software contained in the Controller, or otherwise attempt to obtain, directly or indirectly, source code for such software or any portion of such software; (b) use the Pakked Service 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; (c) use the Pakked Service in a managed services arrangement; (d) attempt to gain unauthorized access to or use of the Pakked Service or damage, disrupt, or impede the operation of Pakked’s services or systems; (e) transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature.; (f) use the Pakked Service for illegal purposes or for promotion of dangerous activities (g) upload or display publicly any content that contains threatening, abusive, harassing, defamatory, libelous, invasive, hateful, or racially, ethnically or otherwise objectionable material; or (h) use the Services in any manner that may harm minors or that interacts with or targets people under the age of thirteen.  

3. 2.3 Customer acknowledges and agrees that the Pakked Service, or a portion thereof, may be subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). Customer and Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Pakked Service or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. Customer represents and warrants that: (i) Customer and its Users  (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) and that Customer and its Users  will not access or use the Pakked Service, or export, re-export, divert, or transfer the Pakked Service, in or to such countries or territories; (b) are not persons, or owned 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) Customer and Users located in China, Russia, or Venezuela are not Military End Users and will not put the Pakked Service to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Content created or submitted by Customer or its Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) Customer and its Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. Customer is solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications and the acts and omissions of its Users related thereto.  

3. RESPONSIBILITIES  

1. 3.1 Feedback. If Customer provides Pakked with information, feedback, suggestions and comments regarding the Pakked Service’s features and performance (“Feedback”), Pakked has the right, but not the obligation, to use Feedback in any way without restriction or obligation to Customer. Pakked shall be the exclusive owner of, and shall be free to use for any purpose, any ideas, concepts, know-how, or techniques resulting from Feedback, including, without limitation, any modifications or enhancements to the Pakked Service.   

2. 3.2 Customer Data. All data that Customer either utilizes or uploads in connection with usage of any Pakked Service is defined as (“Customer Data”). Customer will have sole discretion as to which Customer Data it will utilize in connection or use of the Pakked Service. Customer Data is the sole property of Customer. Customer covenants, represents and warrants that it will comply with (a) its applicable privacy and security policy(ies) and (b) all applicable federal, state, local and international privacy, data protection, and security laws, rules and regulations, including without limitation, laws relating to the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of personal or regulated data. Customer covenants, represents and warrants that it has all rights and has obtained all necessary consents, permissions and authorization with respect to Customer Data, including without limitation the provision of Customer Data to Pakked and the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of personal or regulated data of the Customer Data in connection with Pakked’s provision of the Services, including but not limited to, Statistical Data as set forth in Section 5.4 below. Customer authorizes Pakked to access or process the Customer Data in an encrypted state and only with Customer’s prior written consent in an unencrypted state, as required to provide the Pakked Service and the Maintenance and Support to Customer.   

3. 3.3 Security. Pakked shall use commercially reasonable efforts in accordance with industry accepted standards used or observed by comparable suppliers of similar services/applications, which standards shall in no event be less than reasonable standards of care in all circumstances, to protect the security and integrity of Customer Data. To the extent that Customer Data is subject to EU General Data Protection Regulation (“GDPR”), Pakked shall process Customer Data in accordance with GDPR Processing Terms & Conditions, which such terms and conditions may be found at https://pakked.com/gdpr-processing-terms/. Customer use of the Pakked Service shall be deemed acceptance and agreement of such terms and conditions.  Unless prohibited by law, Pakked shall promptly inform Customer of all security-related issues that threaten the security of Customer Data discovered or brought to Pakked’s attention (“Security Issue”). Pakked shall use all commercially reasonable efforts consistent with sound software development practices, taking into account the severity of the risk, to resolve all Security Issues.   

4. FEES AND PAYMENT  

1. 4.1 Fees. Subscriber shall pay Seller the fees set forth in all Orders (the “Fees”). All Fees are nonrefundable and non-pro-ratable, except as provided in Section 10.4.   

2. 4.2 Additional Costs and Expenses.  

   1. a. All Fees are exclusive of taxes, including import or export duties, sales, use, value added, withholding and excise taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”) Subscriber shall pay all such Taxes, excluding Taxes based on net income of Pakked or the reseller. If Pakked has the legal obligation to pay or collect Taxes for which Subscriber is responsible, such Taxes shall be included on Pakked’s invoices to Subscriber and Subscriber shall pay such Taxes to Pakked, unless Subscriber provides Pakked with a valid tax exemption certificate authorized by the appropriate taxing authority.  

   2. b. Subscriber shall reimburse Pakked for all reasonable travel and living expenses incurred by Pakked in performing Training, Maintenance and Support or any Additional Services on-site, including transportation, lodging, meals, and other incidental expenses, provided that Subscriber has first authorized such expenses, which authorization shall not be unreasonably withheld. Pakked shall invoice Subscriber for any such expenses on a monthly basis.  

3. 4.3 Invoices and Payments. Pakked shall invoice Subscribers for the Fees according to the schedule set forth in the applicable Order. All Fees shall be due and payable within thirty (30) days after date of Pakked’s corresponding invoice unless otherwise stated in an applicable Order. Subscribers may elect to allow Pakked to charge Fees to a credit card on an annual or monthly recurring basis. Pakked may elect to utilize a PCI compliant third-party to process any such credit card charges. All payments shall be in U.S. Dollars.  

4. 4.4 Late Fees. If Subscriber fails to pay any Fees or other charges due by their applicable due date, at Pakked’s discretion, such charges may accrue late charges at the rate of one point five percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law, whichever is less, from the date such payment was due until the date paid. All amounts paid shall first be applied against any late charges due, with the balance applied against the outstanding Fees and charges.  

5. 4.5 Suspension of Service. If any undisputed Fees or charges are overdue more than thirty (30) days (whether by Subscriber to Pakked or a reseller, or by the applicable reseller to Pakked), Pakked shall have the right upon written notice to Subscriber, without limiting its other rights and remedies, to suspend the Pakked Service and Additional Services until such amounts are paid in full. Subscriber shall hold harmless Pakked and waives any claim or cause of action against Pakked with respect to any service disruption as a result of a reseller’s failure to pay any applicable fees to Pakked, and Subscriber’s sole claim and remedy shall be with the applicable reseller.  

6. 4.6 Audits. During the Term, Subscriber shall maintain accurate and complete records with respect to its use of the Pakked Service. Pakked shall have the right, at its own expense, not more than once per year, on reasonable notice to Subscriber, to perform an audit of such records in order to confirm Subscriber’s compliance with the Terms, including the number of authorized Users. Any such audit shall be conducted during normal business hours and in a manner designed to not unreasonably interfere with Subscriber’s ordinary business operations. If an audit discovers that Subscriber has exceeded the number of authorized Users set forth in the Orders, Subscriber shall promptly pay Pakked the Fees due for such additional Users in addition to Pakked’s reasonable costs of such audit.  

5. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS  

1. 5.1 Limited License. Pakked grants to Customer a nonexclusive, nontransferable, revocable, worldwide license, without right of sublicense, to access and use the Pakked Service and any applicable Additional Services for Customer’s internal use as set forth in this Agreement. The foregoing license and Customer’s use of the Pakked Service and any Additional Services are also subject to any and all Documentation.  

2. 5.2 Ownership by Pakked. Pakked owns and shall retain any and all proprietary rights to the Pakked Service, Training, Maintenance and Support, Additional Services, all Feedback, all data relating to the Pakked Service’s and Additional Services’ performance, and all intellectual property, work product, content, ideas, know-how, concepts, methods and techniques created or employed by Pakked in the delivery of the Pakked Service and Additional Services, whether pre-existing or developed in the course of providing the Pakked Service and Additional Services (collectively, the “Pakked IP”). In the event any right, title or interest arises or vests at any time in Customer to any Pakked IP, Customer assigns to Pakked all such right, title and interest. Customer shall execute, and cause its employees and other representatives to execute, all necessary documents to give legal effect to such assignment or otherwise secure Pakked’s ownership of the Pakked IP.   

3. 5.3 Ownership of Customer Data. Customer owns and shall retain all right, title and interest, including all intellectual property rights, in and to the Customer Data.   

4. 5.4 Statistical Data. Notwithstanding Section 5.3, Pakked may aggregate and use for Pakked’s internal business purposes those portions of the Customer Data that relate to how Customer uses the Pakked Service and Additional Services (“Statistical Data”).  

5. 5.5 Reservation of Rights. Other than the explicit rights granted in this Agreement, nothing in this Agreement shall be construed or interpreted as granting to Customer any rights or licenses, including any rights of ownership or any other proprietary rights in or to the Pakked IP or any portion, including any intellectual property rights. Other than the explicit rights granted in this Agreement, nothing in this Agreement shall be construed or interpreted as granting to Pakked any rights or licenses, including any rights of ownership or any other proprietary rights in or to the Customer Data or any portion, including any intellectual property rights.    

6. CONFIDENTIALITY  

1. 6.1 Definition. “Confidential Information” means any information that is disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”) (whether disclosed in writing, orally, by electronic delivery, by inspection of tangible objects, on office or site visits, or otherwise) that relates to the Disclosing Party’s business, finances, affiliates, licensees, licensors, customers, products, services, pricing, or intellectual property. Without limitation of the foregoing, all information relating to the Pakked IP, including the Pakked Service and Additional Services, and the terms and conditions of this Agreement shall be deemed Pakked’s Confidential Information and all Customer Data shall be deemed Customer’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is generally known to the public when first disclosed by or on behalf of the Disclosing Party or thereafter becomes generally known to the public through no act or fault of the Receiving Party; (b) the Receiving Party already had obtained or obtains, without breaching any duty to the Disclosing Party, from a third party that was not under an obligation of nondisclosure; or (c) was or is independently developed by the Receiving Party without use or reference to any information obtained from the Disclosing or any party acting on behalf of the Disclosing Party, as demonstrated by the Disclosing Party’s written records.  

2. 6.2 Obligations. The Receiving Party shall not: (a) reproduce the Disclosing Party’s Confidential Information; (b) use the Disclosing Party’s Confidential Information for any purpose other than to perform its obligations under and in accordance with this Agreement; or (c) disclose the Disclosing Party’s Confidential Information to any party other than an employee or independent contractor of the Receiving Party having a need to know such Confidential Information and who is under a binding obligation of confidentiality and limitation of use and disclosure consistent with the terms hereof. Neither party, nor any party affiliated with such party, shall remove any copyright or proprietary marking from the other party’s Confidential Information.  

3. 6.3 Required Disclosure. Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law or court, or by a lawful subpoena issued by any state or Federal court, arbitral, or other governmental order or process, provided the Receiving Party: (a) gives the Disclosing Party immediate written notice as soon as it learns of such requirements in order to permit the Disclosing Party to seek a protective order or other appropriate relief; (b) assists the Disclosing Party in connection with such efforts; and (c) discloses only the Confidential Information required to be disclosed. The Receiving Party shall continue to treat any Confidential Information disclosed pursuant to this Section 6.3 as Confidential Information for all other purposes.  

4. 6.4 Right to Equitable Relief. Each party acknowledges and agrees that in the event of any breach of this Section 6 (either actual or threatened), remedies at law shall be inadequate. Each party agrees that in such event, the Disclosing Party shall have the right to seek specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and such rights and remedies shall be cumulative.  

7. WARRANTIES AND DISCLAIMERS  

1. 7.1 Pakked warrants that the Pakked Service will achieve in all material respects the functionality described in the Documentation. Customer’s sole and exclusive remedy for Pakked’s breach of this warranty shall be that Pakked shall be required to use commercially reasonable efforts to modify the Pakked Service to achieve in all material respects the functionality described in the Documentation and if Pakked determines, in its sole and absolute discretion, that it is unable to so modify the Pakked Service, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of the annual Fees pre-paid under this Agreement for the Pakked Service for the terminated portion of the Agreement from the effective of termination. Pakked shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of Customer’s becoming aware of the first instance of any material functionality problem. Any such notice must be sent to support@pakked.com. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Pakked Service has been utilized in accordance with this Agreement.  

2. 7.2 Customer Warranty. Customer warrants that it has the full right, power, and authority to allow its Users use the Pakked Service, including to provide and make available all applicable data,  information and Customer Data to Pakked for the purpose of providing the Pakked Service, and that Pakked’s use of such data, information and Customer Data in providing the Pakked Service to Customer and its Users as provided herein does not and will not infringe, misappropriate, or otherwise violate any right (including intellectual property rights, privacy rights, publicity rights, trade secrets, or contractual rights), or any applicable law or regulation. Customer agrees to defend, indemnify, and hold harmless Pakked from and against any and all claims, losses, damages, and harms of any kind arising out of or relating to any violation or alleged violation of the foregoing.  

3. 7.3 CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:  ITS USE OF THE SERVICES IS AT ITS SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PAKKED EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (b) PAKKED DOES NOT WARRANT THAT (i) THE SERVICES WILL MEET ALL OF CUSTOMER’S  REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE; OR (iii) ERRORS IN THE SOFTWARE WILL BE CORRECTED; and (c) ANY TRANSMISSION OF CONTENTS THROUGH THE USE OF THE SERVICES IS DONE AT CUSTMER’S AND USER’S OWN DISCRETION AND RISK AND CUSTOMER  WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR USERS’  COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM ANY SUCH TRANSMISSION. 

4. 7.4 CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PAKKED SERVICE, TRAINING, MAINTENANCE AND SUPPORT, ADDITIONAL SERVICES, THE PAKKED IP AND ALL COMPONENTS OF ALL OF THE FOREGOING ARE PROVIDED “AS IS”. PAKKED DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (B) RELATING TO THE PERFORMANCE OF THE PAKKED SERVICE TRAINING, MAINTENANCE AND SUPPORT, OR ADDITIONAL SERVICES; (C) WITH RESPECT TO ANY RESULTS TO BE OBTAINED FROM THE PAKKED SERVICE, TRAINING, MAINTENANCE AND SUPPORT, OR ADDITIONAL SERVICES; (D) THAT USE OF THE PAKKED SERVICE AND ADDITIONAL SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; OR (E) WITH RESPECT TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, OR EFFECTIVENESS OF ANY DATA, RESULTS, CONTENT OR OTHER INFORMATION OBTAINED OR GENERATED BY CUSTOMER THROUGH ITS USE OF THE PAKKED SERVICE AND ADDITIONAL SERVICES.  

8. INDEMNIFICATION  

1. 8.1 Pakked shall indemnify, defend and hold harmless Customer (and its officers, directors, employees, shareholders and agents) from and against any and all third party claims, actions, suits, proceedings, liabilities, losses, damages, fines, injuries, interest or expenses (including reasonable attorneys’ fees and costs of investigation and defense) (“Losses”) arising from or relating to any claim that the Pakked Service, when used as permitted in this Agreement, violate or infringe any intellectual property rights of any third party.  

2. 8.2 Customer agrees to indemnify, defend and hold harmless Pakked, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Customer’s or its Users use of the Services, Customer or its User’s violation of this Agreement or the infringement or violation by  Customer or any other User of Customer’s account, of any intellectual property or other right of any person or entity or applicable law.  

3. 8.3 The obligation to indemnify under this Agreement is conditioned on the party receiving the benefit of the indemnity (the “Indemnified Party”) providing the party with the obligation (the “Indemnifying Party”) with (a) prompt written notice of covered claim, action, suit or proceeding (“Claim”); (b) sole control and authority over the defense or settlement of such Claim; and (c) proper and full information and reasonable assistance to defend and/or settle any such Claim. The Indemnifying Party may not settle any such Claim in any manner that binds the Indemnified Party without the Indemnified Party’s prior written consent. Notwithstanding the foregoing, the Indemnified Party may, at its own expense, participate in the defense and settlement of any such Claim.  

4. 8.4 Infringement. In the event that a claim subject to Section 8.1 is made or threatened, or Pakked reasonably believes that Customer’s use of the Pakked Service or any Additional Service is likely to be infringing, Pakked, at its option and expense, may either (a) secure for Customer the rights necessary to continue to use the applicable Service; (b) modify such Service so that it becomes non-infringing, (c) replace the potentially infringing portion of such Service with a functionally equivalent non-infringing product or service; or (d) if Pakked determines that none of the foregoing options are reasonably practicable, immediately terminate this Agreement. This Section 8 sets forth Pakked’s entire liability and obligation, and Customer sole and exclusive remedy with respect to any claims of infringement or misappropriation of any intellectual property rights of any other party.  

5. 8.5 Exceptions. Notwithstanding the provisions of Section 8, Pakked shall have no obligation to indemnify Customer with respect to any Losses to the extent resulting from (a) the combination of the Pakked Service or any Additional Service or portions thereof with products or services not provided by Pakked or reasonably anticipated to be used in conjunction with the Pakked Services or Additional Services; (b) the modification of the Pakked Service or any Additional Service by any party other than Pakked; or (c) the use of the Pakked Service or Additional Services in a manner not expressly permitted by this Agreement.  

9. LIMITATION OF LIABILITY  

1. 9.1 Limitation of Cumulative Liability. EXCEPT FOR PAKKED’S LIABILITY UNDER SECTION 8.1, PAKKED’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, WITH RESPECT TO THE PAKKED IP, THE PAKKED SERVICE AND THE ADDITIONAL SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO PAKKED UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM OR ACTION.  

2. 9.2 Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS REVENUE, LOSS PROFITS, LOSS BUSINESS) WHETHER IN CONTRACT, IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) OR OTHERWISE RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM UNDER THIS AGREEMENT (INCLUDING LOSS OF DATA OR LOSS OF ANTICIPATED PROFITS OR BENEFITS) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

10. TERM AND TERMINATION  

1. 10.1 Term. The term of a Subscription Plan shall commence on the date of execution of the first applicable Order and lasts until the termination or expiration of all Subscription Terms under all applicable Orders executed hereunder (the “Term”). Pakked shall provide Customer with written notice of any increases in the Fees for any Renewal Term at least sixty (60) days prior to the end of the then-current Subscription Term.  

2. 10.2 Termination for Cause. If at any time during the Term, either Pakked or Subscriber materially defaults in its performance of or breaches any of the terms and conditions of this Agreement and such breach is not cured within thirty (30) days after the breaching party receives notice of such breach from the non-breaching party, the other party shall have the right to terminate this Agreement (and any and all Orders then in effect) effective immediately upon written notice to the breaching party.  

3. 10.3 Termination by Pakked. Notwithstanding any other provision of the Agreement Pakked reserves the right to terminate this Agreement for Freemium Users at any time. Pakked shall have the right to terminate a Subscription Plan (or any applicable Order(s) then in effect) immediately upon notice as set forth in Section 2.2 and 8.4.  

4.  10.4 Effect of Termination. Upon the expiration or termination of this Agreement for any reason,  

   1. a. Customer shall immediately cease all use of the Pakked Service and the Additional Services and all rights to use the Pakked Service granted under this Agreement shall terminate.  

   2. b. Except with respect to termination by Subscriber for Pakked’s material breach which remains uncured, within thirty (30) days of such expiration or termination, Customer shall pay all outstanding amounts then due.  

   3. c. In the event of termination by Subscriber for Pakked’s material breach which remains uncured or pursuant to Section 11, Pakked shall refund to Subscriber any pre-paid Fees covering the remainder of the Term.  

   4. d. Upon written request, each party shall return to the other party or, pursuant to the other party’s written instructions, destroy, all materials in its possession or control containing Confidential Information of the other party;   

   5. e. Unless specified otherwise, all Customer Data, as well as created or uploaded content, will be securely destroyed by Pakked within 90 days of termination; and  

   6. f. The following provisions shall survive: 4.3, 4.4, 5.2-5.4, 6, 7.2, 8, 9, 10.4 and 12.  

5. FORCE MAJEURE   Pakked shall not be liable to the Customer for any failure to perform, loss of data or service, or any delay in performance under this Agreement if such failure or delay arises from any act beyond Pakked’s reasonable control, such as, but not limited to, natural disasters or other acts of God, wars, fires, riots, strikes, acts of any governmental authority in its sovereign capacity (including legislation that makes performance herein impossible, impractical, or economically unreasonable), lockouts, labor disputes, accidents, malicious damage caused by a third party to technology deployed or used by Pakked, or the breakdown, failure or malfunction of any telecommunications, computer or other electrical, mechanical or technological service or system (“Force Majeure Event”). Pakked shall give prompt written notice to the Customer of any Force Majeure Event and shall work diligently to resolve such event. In the event a Force Majeure Event continues for more than sixty (60) days, Customer shall have the right to terminate this Agreement for convenience.  

11. MISCELLANEOUS PROVISIONS  

1. 11.1 General. This Agreement shall be construed in accordance with California law, without reference to its conflict of law principles. The parties submit to the exclusive jurisdiction of, and waive any venue objection, including forum non-conveniens, against the state and federal courts in Los Angeles County, California, for any litigation arising out of this Agreement. The parties are independent contractors and nothing in this Agreement shall be construed as establishing a joint venture, partnership, employment or agency relationship between the parties. In the event that any provision of the Agreement shall be determined to be illegal or unenforceable, a modified provision or written agreement shall be substituted which carries out as nearly as possible the original intent of the parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby. With respect to its subject matter, this Agreement (together with its Exhibits and all Orders, all of which are incorporated into this Agreement by reference) represents the parties’ entire agreement and supersedes all prior agreements, understandings and representations, written or oral, between the parties. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns and may not be amended except by a writing signed by the duly authorized representatives of both parties. The failure of a party to require performance of any provision of this Agreement shall in no manner affect its right to enforce the provision, and no delay or failure by either party to exercise any right or remedy shall operate as a waiver thereof. Pakked may assign or transfer any and all rights or obligations under this Agreement Party to a successor who acquires substantially all of its relevant assets or business at any time without your prior written consent. Except as expressed herein, Customer may not assign or transfer (whether by operation of law, merger, consolidation, change of control or otherwise) any rights or obligations under this Agreement without the prior written consent of Pakked. This Agreement may be executed in one or more counterparts and by facsimile or other electronic transmission (including via email in “portable document format” or, in the case of Customer click through), each of which shall be deemed an original, but all of which shall constitute the same instrument. Notwithstanding anything else in the Agreement, As Pakked’s business evolves, Pakked may change the Terms. If Pakked makes a material change to the Terms, it will provide Customer with reasonable notice prior to the change taking effect either by emailing the email address associated with your account or by messaging you through the Pakked Service. Customer can review the most current version of the Terms at any time by visiting this website. Any material revisions to the Terms will become effective on the date set forth in the applicable notice, and all other changes will become effective on the date Pakked publishes the change. If Customer uses the Pakked Service after the effective date of any changes, that use will constitute Customer’s acceptance of the revised terms and conditions.  

2. 11.2 Notices. Customer agrees that Pakked may provide Customer with notices regarding the Pakked Service by email, post or postings on the website(s) related to the affected Pakked Service, in Pakked’s discretion, and that Pakked  may rely upon the contact information Customer has provided as being accurate, complete and current.  Except where this Agreement specifically provide for use of a different means or address for notice, any notice hereunder to Pakked must be delivered by email to support@pakked.com.  This email address may be updated as part of any update to this Agreement.  

3. 11.3 Conflict. To the extent of any conflict or inconsistency between this Agreement and any Exhibit, Order, or any other document related to the parties’ obligations under this Agreement, the terms of this body of this Agreement shall govern unless otherwise expressly agreed by the parties in writing. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.  

4. 11.4 Interpretation. The words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” and the words “such as”, “for example” “e.g.” and any derivatives shall mean by way of example and the items that follow these words shall not be deemed an exhaustive list. The descriptive headings and labels of the articles, sections, and subsections of this Agreement are for convenience and reference only and shall not affect this Agreement’s construction or interpretation.