These Plena Terms of Service (together, the "Agreement") are entered into by Plena and the entity or person agreeing to these terms ("Customer") and govern Customer's access to and use of the Services. Plena is a multinational entity with offices in North America and Asia.
This Agreement is effective when the Customer clicks to accept the quote or proposal electronically (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.
During the Term, Plena will provide the Services in accordance with the Agreement, including the SLAs, and Customer may use the Services, and integrate the Services into any Customer Application that has material value independent of the Services, in accordance with the Agreement.
Customer will have access to the Portal, through which Customer may manage its use of the Services.
Customer must have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. Plena has no obligation to provide multiple accounts to the Customer.
(a) To the Services. Plena may make commercially reasonable updates to the Services from time to time. Plena will inform Customer if it makes a material change to the Services that has a material impact on Customer's use of the Services provided that Customer has subscribed with Plena to be informed about such change.
(b) To the Agreement. Plena may make changes to this Agreement (including the URL Terms) and pricing from time to time. Unless otherwise noted by Plena, material changes to the Agreement will become effective immediately after they are posted, except to the extent the changes apply to new functionality, or are required by applicable law to be effective on a future date. Plena will provide at least 30 days' advance notice for materially adverse changes to any SLAs by either (i) sending an email to the Notification Email Address; or (ii) posting a notice in the Admin Portal; or (iii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, Customer may stop using the Services. Customers may also terminate this Agreement for convenience under Section 8.4 (Termination for Convenience). Customer's continued use of the Services after such material change will constitute Customer's consent to such changes.
Discontinuation of Services: Plena will notify Customer at least 6 months before discontinuing any Service (or associated material functionality) unless Plena replaces such discontinued Service or functionality with a materially similar Service or functionality.
Late payments may bear interest at the rate of 4.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Plena in collecting such delinquent amounts. Further, if Customer's payment for the Services is overdue, Plena may Suspend the Services.
(a) Customer is responsible for any Taxes, and will pay Plena for the Services without any reduction for Taxes. If Plena is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Plena, unless Customer provides Plena with a timely and valid tax exemption certificate in respect of those Taxes.
(b) Customer will provide Plena with any applicable tax identification information that Plena may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Plena for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
Any payment disputes must be submitted before the payment due date. If the parties determine that certain billing inaccuracies are attributable to Plena, Plena will not issue a corrected invoice, but will instead issue a credit specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Plena will apply the credit amount to a disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Refunds (if any) are at Plena’s discretion and will only be in the form of credit for the Services. Nothing in this Agreement obligates Plena to extend credit to any party.
Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Plena of any unauthorized use of, or access to, the Services, Account, or Customer's password of which Customer becomes aware. Plena reserves the right to investigate any potential violation of the EULA by Customer, which may include reviewing Customer Applications, Customer Data, or Customer Business Processes.
Customer is not allowed to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the local laws; (iii) in a manner intended to avoid incurring Fees (including creating multiple Customer Applications, Accounts, or Projects to simulate or act as a single Customer Application, Account, or Project (respectively)) or to circumvent Service-specific usage limits or quotas; (iv) to engage in data mining or webcrawling without Plena’s prior written approval; (v) to build and create spam campaigns; (vi) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (vii) in a manner that breaches, or causes the breach of, Export Control Laws; or (viii) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA.
Plena may provide Documentation for Customer's use of the Services.
Plena responds to notices of alleged copyright infringement and terminates the Accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.
If Plena becomes aware that Customer's or any End User's use of the Services violates this EULA, Plena will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Plena’s request, then Plena may Suspend all or part of Customer's use of the Services until the violation is corrected.
Notwithstanding EULA Violations, Plena may immediately Suspend all or part of Customer's use of the Services if (a) Plena reasonably believes Suspension is needed to protect the Services, Plena’s infrastructure supporting the Services, or any other customer of the Services (or their end users); (b) there is suspected unauthorized third-party access to the Services; (c) Plena reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is fraudulently impersonating somebody’s identity. Plena will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, Plena will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.
Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. Plena retains all Intellectual Property Rights in the Services and Software.
At its option, Customer may provide feedback or suggestions about the Services to Plena ("Feedback"). If Customer provides Feedback, then Plena and its Affiliates may use that Feedback without restriction and without obligation to Customer.
Subject to payment of applicable support Fees, Plena will provide TSS to Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee. If Customer downgrades its TSS level during any calendar month, Plena may continue to provide TSS at the same level and for the same TSS Fees as applied before the downgrade for the remainder of that month.
The recipient will only use the disclosing party's Confidential Information to exercise the recipient's rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.
Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.
The term of this Agreement (the "Term") will begin on the Effective Date and continue until the Agreement is terminated.
To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
Plena may terminate this Agreement immediately on written notice if Plena reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Plena to violate any Anti-Bribery Laws or Export Control Laws.
If the Agreement is terminated, then (a) all rights and access to the Services will terminate (including access to Customer Data, if applicable), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Plena are immediately due upon termination.
Customer may state publicly that it is a Plena customer and display Plena Brand Features in accordance with the Trademark Guidelines. Plena may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in the Agreement.
Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.
To the extent permitted by applicable law and subject to Section ‘Unlimited Liabilities’, neither party will have any Liability arising out of or relating to the Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.
Each party's total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid during the 1 month period before the event giving rise to Liability, except Plena’s total aggregate Liability for damages arising out of or related to Services or Software provided free of charge is limited to $1,000.
Nothing in the Agreement excludes or limits either party's Liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its infringement of the other party's Intellectual Property Rights;
(c) its payment obligations under the Agreement; or
(d) matters for which liability cannot be excluded or limited under applicable law.
Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Plena must be sent to email@example.com. Notice will be treated as received when the email is sent and acknowledged. Customer is responsible for keeping its Notification Email Address current throughout the Term.
The parties may use emails to satisfy written approval and consent requirements under the Agreement.
Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.
Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
Plena may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
This Agreement does not create any agency, partnership, or joint venture between the parties
Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
This Agreement does not confer any benefits on any third party unless it expressly states that it does.
Nothing in this Agreement will limit either party's ability to seek equitable relief.
(a) For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.
(b) For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
(c) For All Other Entities. If Customer is any entity not identified in Section ‘U.S. Governing Law for U.S. City, County, and State Government Entities’ or (b) ‘U.S. Governing Law for Federal Government Entities’, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
The following Sections will survive expiration or termination of this Agreement: Payment Terms, Intellectual Property Rights, Protection of Customer Data; Feedback, Confidential Information, Effect of Termination, Disclaimer, Limitation of Liability, Indemnification, and Miscellaneous.
This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. The URL Terms are incorporated by reference into the Agreement. After the Effective Date, Plena may provide an updated URL in place of any URL in this Agreement.
If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.
1. "Account" means Customer's Plena account.
2. "Admin Console" means the online console(s) or dashboard provided by Plena to Customer for administering the Services.
3. "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
4. "Anti-Bribery Laws" means all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties.
5. "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
6. "Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.
7. "Control" means control of greater than 50 percent of the voting rights or equity interests of a party.
8. "Customer Application" means a software program that Customer creates or integrates using Plena Services.
9. "Customer Data" means data provided to Plena by Customer.
10. "Documentation" means the Plena documentation (as may be updated from time to time) in the form generally made available by Plena to its customers for use with the Services at https://plena.io
11. "End Users" means the individuals who are permitted by Customer to use the Services. For clarity, End Users may include employees of Customer Affiliates and other authorized third parties.
12. "Export Control Laws" means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
13. "Fee Accrual Period" means a calendar month or another period specified by Plena in the Admin Console.
14. "Fees" means the applicable fees for each Service, Software, or TSS plus any applicable Taxes.
15. "Plena API" means any application programming interface provided by Plena as part of the Services.
16. "High Risk Activities" means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
17. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
18. "including" means including but not limited to.
19. "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
20. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
21. "Legal Process" means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
22. "Liability" means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
23. "Notification Email Address" means the email address(es) designated by Customer in the Admin Console.
24. "Suspend" or "Suspension" means disabling or limiting access to or use of the Services or components of the Services.
25. "Taxes" means all government-imposed taxes, except for taxes based on Plena's net income, net worth, asset value, property value, or employment.
26. "Term" has the meaning stated in ‘Agreement Term’ of this Agreement.
27. "Third-Party Offerings" means (a) third-party services, software, products, and other offerings that are not incorporated into the Services or Software, (b) offerings identified in the "Third-Party Terms" section of the Service Specific Terms, and (c) third-party operating systems.
28. "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
29. "TSS" means the then-current technical support service provided by Plena to Customer under the TSS Guidelines.