SaaS Terms of Use - Pactly Service Agreement

Pactly Private Limited (the “Company”) is pleased to offer you, the Customer as specified in the relevant Order Form, access to our cloud-based contracting platform hosted at (https://app.pactly.ai) (the “Services”), according to the terms and conditions in this Agreement (the “Agreement”).

1. SaaS Services and Support

1.1 Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Customer with the Services in accordance with the Service Level Terms published on our website at https://www.pactly.com/sla, which may be modified from time to time by giving email notice to the administrative contact of the Customer. By continuing to use the Services for a period of not less than 30 days after the date of the Company’s email notice, the Customer agrees to be bound by the amended Service Level Terms.

1.2 Subject to the terms in this Agreement, the Company will provide the Customer with reasonable technical support services in accordance with the Company’s standard practice, including, providing technical support to the Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 6:00 pm Singapore time, with the exclusion of public holidays in Singapore. The Customer may also initiate a helpdesk ticket anytime by emailing [email protected] or via our customer support portal at https://help.pactly.com/.

2. Restrictions and Responsibilities

2.1 The Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any proprietary notices or labels.

2.2 The Customer represents, covenants and warrants that the Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Although the Company has no obligation to monitor the Customer’s use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3 The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services (the “Equipment”) needed to connect to, access or otherwise use the Services. The Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.

3. Confidentiality; Proprietary Rights

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Customer includes non-public data provided by the Customer to the Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law (any such governmental request will be evaluated in accordance with our law enforcement information request policy, available here https://www.pactly.com/law-enforcement-request).

3.2 The Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services. The Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 No rights or licenses, express or implied are granted except as expressly set forth herein. Notwithstanding anything to the contrary, the Company shall have the right to:

(i) collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free (during but not after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and

(ii) Anonymise (as defined below) Customer Data and to combine it with data from other customers into a new aggregate dataset, and to use such Anonymized Customer Data as a component of such new aggregate dataset for any legal business purposes during and after the term of this Agreement. Without limiting the generality of the requirements for Anonymised data below, the Company shall (a) implement technical safeguards that prohibit reversal of anonymization of Customer Data; (b) implement business processes that specifically prohibit reversal or recreation (c) make no attempt to achieve such reversal, and (d) implement reasonable business processes to prevent inadvertent release of Anonymized Customer Data. (“Anonymize” refers to the removal of any information reasonably likely to identify a company or other business entity; provided such revised data does not include and is not subject to any key, code or other mechanisms that could be used to restore such information.)

4. Term and Termination

4.1 Subject to earlier termination as provided below, this Agreement commences on the Commencement Date (as specified in the relevant Order Form) and is for the Pilot Period and the relevant Initial Service Term (as specified in the relevant Order Form). If indicated as applicable in the relevant Order Form, this Agreement shall be automatically renewed for additional periods of the same duration as the Initial Service Term (the Initial Service Term and any subsequent renewal terms, collectively, the “Term”) unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.

4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement and fails to remedy such breach within thirty (30) days from the first-mentioned party’s written notice notifying of such breach. The Customer will pay in full for the Services up to and including the last day on which the Services are provided, and the Company shall refund to the Customer any Fees already paid by the Customer in respect of any remaining unutilised Term.

4.3 Upon any termination, the Company will make all Customer Data available to the Customer for electronic retrieval for a period of sixty (60) days, but thereafter the Company shall, at the prior written request of the Company, delete, remove or destroy all stored Customer Data (except for any Anonymized Customer Data that has been combined into the Company’s aggregate dataset as provided for in Clause 3.3(ii)). All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

5. Payment of Fees

5.1 The Customer will pay the Company the applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). The Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term (specified in the Order Form) or then-current renewal term, upon thirty (30) days prior notice to the Customer (which may be sent by email). If the Customer believes that the Company has billed the Customer incorrectly, the Customer must contact the Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support team.

5.2 The Company may choose to bill through an invoice (which may be sent by email to the billing contact in the Order Form), in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. The Customer shall be responsible for all taxes associated with Services other than taxes based on the Company’s net income.

6. Warranty and Disclaimer

6.1 The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, the Company does not warrant that the services will be uninterrupted or error-free, nor does it make any warranty as to the results that may be obtained from the use of the Services. Except as expressly set forth in this section, the Services and Implementation Services are provided “AS IS” and the Company disclaims all warranties, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

6.2 The Customer understands and acknowledges that the Company is not a law firm and that using the Services does not create an attorney-client relationship nor is it a solicitation to offer legal advice.

7. Indemnity

7.1 The Company shall hold the Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided that the Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. The Company will not be responsible for any settlement it does not approve in writing.

7.2 The foregoing obligations in Clause 7.1 do not apply with respect to portions or components of the Service (i) not supplied by the Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by the Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where the Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the Customer’s use of the Service is not strictly in accordance with this Agreement.

7.3 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by the Company to be infringing, the Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for the Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide the Customer with a refund of any prepaid, unused fees for the Service.

8. Limitation of Liability

8.1 Notwithstanding anything to the contrary, except for bodily injury of a person, the Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond the Company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the Customer to the Company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.

9. Miscellaneous

9.1 Severability: If any provision of this Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If such modification is not possible, the provision must be treated for all purposes as severed from this Agreement without affecting the legality, enforceability or validity of the remaining provisions of this Agreement

9.2 Assignment: This Agreement is not assignable, transferable or sublicensable by the Customer except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.

9.3 Entire agreement: This Agreement sets out everything agreed by the parties relating to the Services and Implementation Services (if applicable), and supersedes and cancels anything discussed, exchanged or agreed prior to the Commencement Date (as specified in the relevant Order Form). The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the date of this Agreement.

9.4 No Agency: No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever.

9.5 Costs: In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

9.6 Notice: All communications and notices to be made or given pursuant to this Agreement must be in English. The Company may provide any notice to the Customer under this Agreement by sending a message to the administrative email address associated with the Customer’s account. The Customer will be deemed to have received any email sent to the email address then associated with the Customer’s account when the Company sends the email, whether or not the Customer actually receives the email. To give us notice under this Agreement, the Customer must (1) email us at [email protected], or (2) send the Company notice by certified mail, return receipt requested, to Pactly Private Limited, 7 Temasek Boulevard, #12-07, Suntec Tower One, Singapore 038987, Attn: Legal Department.

9.7 Choice of Law; Consent to Jurisdiction: This Agreement shall be governed by the laws of Singapore without regard to its conflict of laws provisions. The Customer consents to the exclusive jurisdiction and venue of Singapore courts. The Company may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of our, our affiliates’, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

9.8 Amendments: The Company may amend this Agreement at any time by posting a revised version on the site for the applicable Service or by otherwise notifying the Customer by email. Amended terms of service become effective upon posting on the site for the applicable Cloud Service or as stated in our email notice message. By continuing to use the Services for a period of not less than 30 days after the effective date of any amendment to this Agreement, the Customer agrees to be bound by the amended terms of service. The Company last amended this Agreement on the date listed at the beginning of this Agreement.