PICK ‘N’ WATCH CUSTOMER AGREEMENT
TERMS AND CONDITIONS
1. CERTAIN DEFINITIONS
“Applicable Laws” means all laws, rules and regulations, in any jurisdiction, including without limitation all privacy and data protection laws, rules and regulations.
“Pick ‘n’ Watch Materials” means the Service and Software and all related Intellectual Property Rights to the foregoing.
“Customer Data” means information provided by Customer to Pick ‘n’ Watch for use with and display through the Service.
“Deliverables” means, collectively, the Service, Hardware, and Software.
“Hardware” means equipment sold by Pick ‘n’ Watch pursuant to an Order Form.
“Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets and any other form of intellectual property rights now or hereafter recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Month” means a period beginning at 12:00:01 am on a specified date and ending at 12:00:00 am on the same date of the next succeeding month.
“Software” means any software provided by Pick ‘n’ Watch to Customer for installation on Customer systems, including any mobile application software, and any software included in any Hardware.
“User” means an individual authorized by Customer with log-in rights to access and use the Service in accordance with the terms of this Agreement.
2. SERVICES & SOFTWARE
Subject to Customer’s continuing compliance with this Agreement, Pick ‘n’ Watch will use commercially reasonable efforts to provide Customer with access to and use of the Pick ‘n’ Watch analytic data service (“Service”) and any implementation, customer support, technical support, maintenance, and training services that are identified in the Order Form (“Support Services”) during the Term. During the Term, Pick ‘n’ Watch hereby grants Customer a personal, non-exclusive, revocable, non-assignable right to access and use the Software solely as necessary for Customer to enjoy the benefit of the Hardware and the Service. All Software is licensed and is not sold. Except for the limited rights granted to Customer in this Agreement, Customer obtains no rights in or to the Pick ‘n’ Watch Materials. Pick ‘n’ Watch (or its licensors) owns and retains all right, title, and interest in and to the Pick ‘n’ Watch Materials. Customer will not take or encourage any action during or after the Term that will impair the rights of Pick ‘n’ Watch in and to the Pick ‘n’ Watch Materials.
Risk of loss for and title to Hardware passes to Customer upon delivery by Pick ‘n’ Watch to Pick ‘n’ Watch’s designated carrier or, if hand delivered to Customer, upon delivery by Pick ‘n’ Watch to Customer. Customer will prepare its facilities as necessary to operate the Hardware and, unless otherwise identified on the Order Form, will be solely responsible for the installation of the same. Hardware purchased hereunder may require certain operating system software, which is furnished to Customer subject to the license terms furnished by the third party hardware or software supplier, including any software written by a third party (“Third Party Software”), which will be provided from publicly available sources at no additional cost. Customer’s use of any Third Party Software is governed by the terms of the applicable Third Party Software license agreement and not the terms of this Agreement. Customer will, in addition to the terms of this Agreement, comply with the terms of the applicable Third Party Software. Customer will obtain and maintain throughout the Term, at its sole cost and expense, any hardware, equipment, Third Party Software, and all Internet browsers and connections required to access or use the Deliverables. PİCK ‘N’ WATCH ASSUMES NO OBLIGATION OR LIABILITY THAT MAY ARISE WITH RESPECT TO SUCH THIRD PARTY SOFTWARE OR CUSTOMER’S USE OR INABILITY TO USE THE SAME AND UNLESS OTHERWISE PROVIDED HEREIN, PİCK ‘N’ WATCH MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE HARDWARE.
4. CUSTOMER RESPONSIBILITIES
(b) Responsibility for Other Parties. Customer will be liable for any acts or omissions of each Customer Party related to this Agreement, the Customer Data, Service Data or the use of the Deliverables. Customer will ensure that all Customer Parties comply with Customer’s obligations under this Agreement and that the Customer Parties only use the Deliverables in compliance with Applicable Law.
5. CUSTOMER DATA
Customer owns and retains all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Customer grants Pick ‘n’ Watch a license to use the Customer Data to provide the Service on behalf of Customer. Pick ‘n’ Watch will maintain administrative, physical and technical safeguards designed to protect the security, confidentially and integrity of the Customer Data. Pick ‘n’ Watch will not give Customer Data to any third parties unless Pick ‘n’ Watch (i) has Customer’s consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Pick ‘n’ Watch, its users or the public; or (iii) provides such information in anonymous or aggregated form in a manner that does not identify Customer. To the extent permitted by Applicable Laws and notwithstanding the foregoing, Customer grants Pick ‘n’ Watch a perpetual, transferable, sublicensable and irrevocable license to use, distribute, and otherwise exploit Customer Data solely in anonymized de-identified form (in whole or in part) for any business purpose. Customer grants to Pick ‘n’ Watch the right to identify Customer as Pick ‘n’ Watch’s customer by using Customer’s name, trade name, or other brand features (such as Customer’s trademark(s) or service mark(s)): (i) on Pick ‘n’ Watch’s website(s); and, (ii) in connection with any of Pick ‘n’ Watch’s marketing or promotional materials that generally identify Pick ‘n’ Watch’s customers of the Deliverables, and in each case, in a manner in which Pick ‘n’ Watch deems, in its sole discretion, appropriate. Unless Customer receives prior express written authorization from Pick ‘n’ Watch, Customer will not process via, or submit to, the Service any Customer Data that includes any: (i) “personal health information,” as defined under the U.S. Health Insurance Portability and Accountability Act (“HIPPA“); (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; (v) biometric information, such as fingerprints or voiceprints; or (vi) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive“) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense. In order to facilitate the execution of the rights of the data subject according to article 15 of GDPR, Customer authorizes Pick ‘n’ Watch to immediately handle opt-out requests of Users. Customers can access the User opt-out list through Pick ‘n’ Watch Software.
Customer will pay Pick ‘n’ Watch all fees identified on or referenced in the Order Form (“Fees”), in the currency identified in the Order Form, within 15 days of the invoice date, unless a different period is specified in the Order Form. Customer will pay Pick ‘n’ Watch any Fee which is calculated on an annual basis (“Annual Fee”) upon the commencement of the subscription period specified in the Order Form (“Subscription Period”) and each subsequent anniversary thereof. Customer will pay Pick ‘n’ Watch any other Fee that is charged or calculated on a Monthly or another basis (collectively “Monthly Fee”) on the first day of the Month following the Month in which such Fee was incurred or becomes due; and, such Fees will not be pro-rated, even if Deliverables are only provided for a portion of such Month. Any amount due under this Agreement that remains unpaid after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of 1.5% per Month or the maximum rate permitted by law, calculated from the date such amount was due until the date that payment is received. Customer will pay Pick ‘n’ Watch all sales or other taxes associated with the Deliverables (other than taxes based on Pick ‘n’ Watch’s net income). Customer will pay Pick ‘n’ Watch all costs and expenses of collection (including attorneys’ fees) incurred by Pick ‘n’ Watch for collecting any amounts past due under this Agreement. Pick ‘n’ Watch may change the Fees and payment policies for any Deliverables provided after the Initial Term by providing Customer with written notice thereof.
7. TERM; TERMINATION AND SUSPENSION
Unless earlier terminated as provided in the Agreement, this Agreement commences on the Effective Date and continues until the end of the Subscription Period specified in the Order Form (the “Initial Term”). The Agreement will automatically renew for successive 1 year periods thereafter (each a “Renewal Term”), unless a Party notifies the other in writing, at least 45 days before the applicable Renewal Term that it declines to renew the Service (the Initial Term and Renewal Term, the “Term”). Notwithstanding any other provision of this Agreement, Pick ‘n’ Watch may immediately suspend Customer’s use of the Service for any actual or suspected violation of any obligations of Sections 4, 5, or 6. Either Party may terminate this Agreement if the other Party fails to correct any breach of this Agreement within 30 days from written notice. Upon termination or expiration of the Agreement, Customer will cease all access and use of the Deliverables. When the Agreement expires or is terminated, (i) Customer will not be entitled to any refunds of any Fees and (ii) Customer will promptly pay any outstanding balance for Deliverables rendered through the date of termination. The following sections will survive any expiration or termination: 5, 6 (with respect to any amounts accrued prior to expiration or termination), 8, 10, 11, 12 and 13.
(a) Pick ‘n’ Watch will defend Customer against any third party claim, action, proceeding or suit, that the Pick ‘n’ Watch Materials infringe or misappropriate the Intellectual Property Rights of any person (“Claim”) and will pay for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement by Pick ‘n’ Watch, excluding any infringement or misappropriation claim arising or relating to any combination of the Pick ‘n’ Watch Materials with another device, platform or service or any unauthorized use of the Pick ‘n’ Watch Materials by Customer. Pick ‘n’ Watch may also, at its option and expense: (i) obtain the right for Customer to continue to exercise the rights granted to Customer under this Agreement; (ii) modify the Pick ‘n’ Watch Materials to make them non-infringing; or (iii) terminate this Agreement and refund any unused Fees paid by Customer. Pick ‘n’ Watch’s indemnification obligations do not extend to Claims arising from or relating to: (1) any use of the Pick ‘n’ Watch Materials in combination with any equipment, software, data or any other materials not provided by Pick ‘n’ Watch; (2) any modification to the Pick ‘n’ Watch Materials not made by Pick ‘n’ Watch; (3) the use of the Pick ‘n’ Watch Materials in a manner contrary to the terms of this Agreement; or (4) the continued use of the Pick ‘n’ Watch Materials after Pick ‘n’ Watch has provided substantially equivalent non-infringing Pick ‘n’ Watch Materials.
(b) Customer will defend Pick ‘n’ Watch against Claims arising out of or relating to: (i) Customer’s breach of any term or condition of this Agreement; (ii) Customer’s use or misuse of the Deliverables, Customer Data or Service Data; (iii) violations of any Applicable Laws (including, without limitation, privacy laws) regarding Customer’s use of the Deliverables, Customer Data, or Service Data; or, (iv) the Customer Data and Service Data or the use thereof by Pick ‘n’ Watch to provide the Deliverables to Customer, and will pay for the resulting costs and damages finally awarded against Pick ‘n’ Watch to such third party by a court of competent jurisdiction or agreed to in settlement by Customer.
9. LIMITED WARRANTY
Pick ‘n’ Watch warrants that the Hardware will be free from defects in material and workmanship and that the Software will substantially conform to its specifications. Pick ‘n’ Watch’s liability and Customer’s exclusive remedy is limited, at Pick ‘n’ Watch’s option, to replacing, repairing, correcting, or issuing credit for any Hardware or Software subject to the warranty in this Section, which, upon inspection, Pick ‘n’ Watch determines is non-conforming. The foregoing limited warranty only applies if and to the extent that (a) the Hardware or Software is properly and correctly installed, configured, interfaced, main¬tained, stored, and operated properly, and (b) the Hardware or Software is not modified or misused. This limited warranty is conditioned upon Customer notifying Pick ‘n’ Watch of the claimed nonconformity within 30 days of discovery of the non-conformance and cooperating with Pick ‘n’ Watch (or its designee) to troubleshoot the claimed nonconformity.
10. WARRANTY DISCLAIMER
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER): PİCK ‘N’ WATCH AND/OR ITS LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE; AND, THE DELIVERABLES AND CUSTOMER DATA ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND. Pick ‘n’ Watch does not represent or warrant that the Deliverables will be uninterrupted or error-free, or that all defects will be corrected. Pick ‘n’ Watch does not warrant or represent that the use of the Deliverables will be correct, accurate, timely or otherwise reliable. Pick ‘n’ Watch will not be responsible for unauthorized access to or alteration of the Customer Data. Customer represents and covenants that Customer has not relied on any other warranties or representations. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH JURISDICTIONS, THE FOREGOING EXCLUSION IS LIMITED AS REQUIRED BY LAW.
11. LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF PİCK ‘N’ WATCH HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, IN NO EVENT WILL: (A) PİCK ‘N’ WATCH BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR OTHERS; (B) PİCK ‘N’ WATCH’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO PİCK ‘N’ WATCH IN THE 12 MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT. Customer acknowledges that the Fees, exclusions, disclaimers and limitations of liability set forth in this Agreement are essential components of this Agreement and form the basis for determining the price charged for the Deliverables, and that Pick ‘n’ Watch would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH AN EVENT THE FOREGOING LIMITATION(S) WILL NOT APPLY TO THE EXTENT REQUIRED BY LAW.
12. GOVERNING LAW; ARBITRATION
Section 12 states the exclusive manner and means for resolving all disputes related to this Agreement. Any dispute regarding this Agreement will be settled by final and binding arbitration by 1 arbitrator, mutually selected by the Parties, sitting in Santa Clara County, California, USA, in accordance with the rules of the American Arbitration Association (“AAA”). This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of any conflicts of law rules or principles and without regard to the United Nations Convention on the International Sale of Goods. The language to be used in the arbitral proceedings will be English and all documents not in English will be accompanied by a translation into English. The Parties will equally bear the fees and out-of-pocket expenses of the arbitration. Any decision of the arbitrator will be (a) a final and non-appealable determination of the matter, (b) binding upon each of the Parties, and (c) enforceable by any court of competent jurisdiction. Notwithstanding anything to the contrary in this Section 12, each Party will have recourse to a court located in Santa Clara County, California, USA for the sole purpose of seeking conservatory or interim measures (including temporary restraining orders or preliminary injunctions) or their equivalent, or for the purpose of such Party’s enforcement of its Intellectual Property Rights. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California, USA, in connection with any action seeking such conservatory or interim measures.
This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous communications, including without limitation, all non-disclosure agreements or other confidentiality agreements executed by the Parties prior to or with an effective date prior to the Effective Date of this Agreement. This Agreement may not be modified except by written agreement of both Parties. Customer will not assign any of the rights or obligations granted hereunder, except with the express written consent of Pick ‘n’ Watch, and any attempted assignment in violation of this paragraph is void. Pick ‘n’ Watch may assign this Agreement or delegate its obligations hereunder without restriction. The Parties are independent contractors; and, this Agreement does not create or imply any partnership, agency or joint venture. A waiver of any provision of this Agreement must be signed by the waiving Party; and, one waiver will not imply any future waiver. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control. If any provision (or any part thereof) of this Agreement is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired. Any notice or other communication under this Agreement given by any Party to any other Party must be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when sent via reputable courier service, to the address specified in the Order Form; or (ii) when sent via email to the email address on record for Customer; and (b) if to Pick ‘n’ Watch, when sent via reputable courier service, to Pick ‘n’ Watch, 333 W SAN CARLOS ST, #600 SAN JOSE, CA 95110 U.S.A., or such other address which Pick ‘n’ Watch may specify from time to time.