piplanning.io Agreement

(a) Provision of PIO. Subject to Customer’s compliance with the terms and conditions in this Agreement, SAI shall make PIO available to Customer’s Users for its internal business purposes on a non-exclusive, non-transferrable basis during the Term (as defined in Section 13 entitled “Term and Termination”) as part of the Services.

(b) Availability. SAI will use commercially reasonable efforts to make PIO available, except for: (i) planned downtime (about which SAI shall use reasonable efforts to provide notice via the Services); or (ii) any unavailability caused by circumstances beyond SAI’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, epidemic, strikes or other labor problems (other than those involving SAI employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within SAI’s possession or reasonable control, and denial of service attacks.

(a) Services Access. Customer is responsible for all activities that occur in Users’ accounts and for Users’ compliance with this Agreement. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify SAI promptly of any such unauthorized access or use; (ii) remove any Users no longer authorized to use the Services; and (iii) comply with all applicable local, state, federal and foreign laws in using the Services. Customer is liable for any User’s breach of this Agreement. Customer further undertakes that it will not allow any Team Licenses to be used by more than one team unless the Team License has been reassigned in its entirety to another team, in which case the prior team will no longer have any right to access or use the Services.

(b) Customer Affiliates. Customer Affiliates may purchase access to the Services for their Users subject to the terms of this Agreement by executing Order Forms hereunder. Customer shall be jointly and severally liable for any duty or obligation incurred by any Customer Affiliate, pursuant to any Order Form related to the subject matter of this Agreement.

(c) Continuous Development. Customer acknowledges that SAI may continually develop, deliver, and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, SAI reserves the right to modify the Services from time to time. Customer agrees that its purchase of Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by SAI with respect to future functionality or features.

(d) Feedback. SAI in its sole discretion may utilize all comments and suggestions, whether written or oral, furnished by Customer to SAI, including comments and suggestions of Users, in connection with its access to and use of the Services (all comments and suggestions provided by Customer or its Users hereunder constitute, collectively, the “Feedback”). Customer hereby grants SAI, on behalf of itself and its Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into SAI products and services. Feedback will not be considered the Confidential Information of Customer or any Customer Affiliate.

(e) Third Party Applications. If Customer installs or enables Third Party Applications for use with the Services, Customer acknowledges that SAI may allow providers of those Third-Party Applications to access Customer Provided Data as required for the interoperation of such Third-Party Applications with the Services. SAI is and will not be responsible for any disclosure, modification, and/or deletion of Customer Provided Data resulting from any such access by Third Party Application providers. Any such access and use of Customer Provided Data is subject to the privacy policies of such Third-Party Application provider. The Services will allow Customer to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.

(f) Restrictions. During the Term and thereafter, Customer shall not itself, and shall not permit any of its employees, contractors, or Users to, directly or indirectly: (i) allow anyone except Users under this Agreement to use the Services; (ii) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party; (iii) use or demonstrate the Services in any other way that is in competition with SAI; (iv) reverse engineer, disassemble or decompile the Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Services (except to the limited extent applicable laws specifically prohibit such restriction); (v) remove any notice of proprietary rights from the Services; (vi) copy, modify, translate or otherwise create derivative works of any part of the Services; (vii) use the Services in a manner that interferes or attempt to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (viii) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (ix) use the Services in a manner which interferes with or disrupt its integrity or performance; (x) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (xi) use the Services to share, store, access, and/or distribute inappropriate materials, including (A) materials containing viruses or other harmful or malicious code; (B) unsolicited mail (spam); (C) copyrighted materials to which Customer does not have sufficient rights; (D) harassing, tortious, or defamatory materials; or (E) other materials prohibited by applicable international, federal, state, or local laws and regulations.

(g) Export Compliance. Customer agrees its use of the Services and/or software will comply with applicable export control and trade sanctions laws, rules, and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Laws”). Customer represents and warrants that it is not (i) located, organized, or resident in a country or territory that is subject to a U.S. trade embargo; or (ii) identified on, or owned or controlled by any party identified on, any applicable sanctions or restricted party list, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC. Customer agrees that it will not use the Services and/or software to disclose, transfer, download, export or re-export, directly or indirectly, any aspect of the Services, software and/or Customer Provided Data to any country, entity or other party which is ineligible to receive such items under the Export Laws. Customer acknowledges that the Services and/or software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Laws. Customer acknowledges that SAI may cease to provide the Services and/or software if SAI determines that Customer has violated any of the representations in this section, and Customer agrees to notify SAI immediately in writing if its status under any of these representations changes.

Customer will be solely responsible for:

(a) Providing all necessary cooperation and information as may be reasonably required by SAI in order for SAI to provide the Services. In the event of any delays in Customer’s provision of such assistance, SAI may adjust any agreed upon timetable or delivery schedule as reasonably necessary;

(b) Ensuring that each User create and maintain a secure and confidential password for their use of the Services, which will be changed upon regular intervals in accordance with industry standard and reasonable password security requirements;

(c) Procuring and maintaining its network connections and telecommunications links;

(d) Ensuring that its systems meet appropriate hardware, software, and any other applicable software requirements; and

(e) Moderating any content posted by Users, for which SAI will have no liability for whatsoever.

SAI has no obligations or responsibility for the above stated Customer responsibilities, including any issues caused by Customer’s use of third-party hardware or software.

(a) Customer Provided Data. Customer is solely responsible for any and all obligations with respect to the accuracy, quality, and legality of Customer Provided Data. Customer will provide all notices to Users under the Agreement and obtain all necessary third-party licenses, consents and permissions needed for SAI to use the Customer Provided Data under this Agreement.

(b) License. Customer grants to SAI, on behalf of itself and its Users, a non-exclusive license to: (i) use the Customer Provided Data as necessary for purposes of providing the Services, including, without limitation, communicating electronically with Users and establishing an independent relationship with such User; and (ii) where necessary, to transfer Customer Provided Data to Third Party Application providers used by SAI, only as required for the provision of the Services and in accordance with PIO’s Privacy Policy.

(c) Data Backup. SAI shall follow its standard safeguarding procedures for Customer Provided Data. In the event of any loss or damage to Customer Provided Data, Customer’s sole and exclusive remedy shall be for SAI to use commercially reasonable efforts to restore the lost or damaged Customer Provided Data from the latest back-up of such data maintained by SAI in accordance with its standard safeguarding procedure. SAI shall not be responsible for any loss, destruction, alteration or disclosure of Customer Provided Data by itself, unless directly caused solely by SAI’s gross negligence or willful misconduct, or by any third party except those third parties sub-contracted by SAI to perform services directly related to Customer Provided Data.

(d) Data Protection. To the extent applicable, SAI and Customer agree to comply with their respective obligations set out in the Data Sharing Addendum at www.scaledagile.com/dsa, as updated from time to time (the “DSA”).

(a) Fees, Invoicing, & Payment. Fees for the Services will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer shall pay all fees specified in all applicable Order Forms. All fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Form: (i) fees are based on Services purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable; and (iv) the number of Team Licenses purchased cannot be increased or decreased during the Term without a new Order Form executed between the parties reflecting such change. Customer is responsible for maintaining complete and accurate billing and contact information.

(b) Storage Limits. Services may be subject to storage limits, used bandwidth, and/or the size of attachments such as photos or files. Data storage and/or hosting fees, if applicable, may apply.

(c) Fee Increases. SAI will be entitled to increase the annual fees by ten percent (10%) at the start of any renewal period.

(d) Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at SAI’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

(e) Taxes. Unless otherwise stated, SAI’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on SAI’s net income or property. If SAI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides SAI with a valid tax exemption certificate authorized by the appropriate taxing authority.

(a) Reservation of Rights. Subject to the limited rights expressly granted hereunder, SAI reserves all rights, title, and interest in and to the Services, including all related intellectual property rights (“SAI IP”). No rights are granted to Customer hereunder other than as expressly set forth herein.

(b) Not Work-Made-For-Hire. The Services and any products provided by SAI are copyrighted works owned by SAI and do not constitute “works made for hire” as defined by the United States Copyright Act of 1976, 17 U.S.C. §101.

(c) Federal Government End Use Provisions. The Services qualify as “Commercial Items” as defined in 48 C.F.R. §2.101. Accordingly, the Services shall be provided to the United States Government only as a Commercial Item and only with those rights customarily provided to the public as set forth in this Agreement.

(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including pricing and other terms reflected in all Order Forms hereunder), the Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from or derived from an independent relationship to a third party (including, without limitation, a User) without breach of any obligation owed to the Disclosing Party, including to inform Users that Customer has access to PIO.

(b) Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

(b) Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

(d) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

(e) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

(a) Warranties. Each party represents and warrants to the other party that (i) it has the legal power to enter into this Agreement, and (ii) this Agreement is executed by its legal representative whose signature has been duly authorized by all necessary corporate action of the party. SAI represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Services shall perform materially in accordance with SAI’s Services specifications. Customer represents and warrants that it has obtained and will maintain throughout the Term, all rights, consents, and permissions for Customer to make available the Customer Provided Data to SAI and for SAI to use the Customer Provided Data as contemplated herein.

(b) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SAI MAKES NO WARRANTIES OF ANY KIND REGARDING THE SERVICES OR THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

(a) Indemnification by SAI. Subject to this Agreement, SAI shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to SAI; (b) gives SAI sole control of the defense and settlement of the Claim (provided that SAI may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to SAI, at SAI’s cost, all reasonable assistance. In addition, SAI may, at its sole option and expense, procure the right for Customer to continue exercising the rights granted hereunder without liability; replace or modify the Services so that it becomes non-infringing; or terminate this Agreement and refund Customer for any pre-paid amounts that are unaccrued as of the date of such termination. This Section states SAI’s entire liability, and Customer’s sole and exclusive remedy, with respect to any third-party assertion of infringement and any claim or action relating thereto.

(b) Exclusions. Section 10(a), entitled “Indemnification by SAI”, will not apply if the alleged claim arises, in whole or in part, from: (i) a use or modification of the Services by Customer or any User in breach of this Agreement; (ii) a combination, operation or use of the Services with other software, hardware or technology not provided by SAI if the claim would not have arisen but for the combination, operation or use; or (iii) the Customer Provided Data (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).

(c) Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold SAI harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against SAI by a third party arising from: (i) a Customer Indemnity Responsibility; or (ii) a breach of Customer’s representations of warranties; provided, that SAI (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases SAI of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

(a) Limitation of Liability. SAI’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE FEES CUSTOMER PAID TO SAI IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM HEREUNDER.

(b) Exclusion of Consequential and Related Damages. WITH THE EXCEPTION OF CUSTOMER’S BREACH OF ITS OBLIGATIONS IN SECTIONS 3 OR 4 ENTITLED “USE OF THE SERVICES” AND “CUSTOMER RESPONSIBILITIES”, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(a) Term of Agreement. This Agreement commences on the Effective Date and continues for the duration specified in the Order Form (“Term”). Upon termination or expiration of this Agreement for any reason all rights and obligations of both parties, including all access to Services granted hereunder, will immediately terminate. Upon expiration or termination, Customer shall promptly return or destroy, and make no further use of, all SAI materials it may have a copy of, and, in the case of destruction, certify such destruction.

(b) Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon any termination for cause by Customer, SAI shall refund Customer any prepaid fees covering the remainder of the subscription term after the date of termination.

(c) Suspension of Services. At any time during the Term, SAI may, immediately upon notice to Customer, suspend access to any Services for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any amount due under this Agreement is not received by SAI within fifteen (15) days after it was due; or (c) breach or violation by Customer (or its Users) of this Agreement or any laws, rules, regulations, and/or third party’s intellectual property rights. SAI will promptly restore Services once and if the reason for suspension has been eliminated. SAI also reserves the right to remove any Customer Provided Data, any third-party information, or content which SAI reasonably believes breaches any laws, rules, or regulations or any third party’s rights and/or is deemed inappropriate. SAI will notify Customer if it removes any Customer Provided Data, third party information, and/or content in accordance with this section. SAI disclaims all liability of any kind as related to Customer Provided Data, third party information, content, and/or any other material which can be accessed using the Services.

(d) Effect of Termination. Upon termination or expiration of this Agreement for any reason, (i) any amounts owed to SAI prior to such termination or expiration will be immediately due and payable and (ii) all licenses and access rights granted will immediately cease to exist.

(e) Return of Customer Provided Data. Upon request by Customer made within sixty (60) days after the effective date of termination of this Agreement, SAI will make available to Customer for download a file of Customer Provided Data in portable format along with attachments, if applicable, in their native format. After such 60-day period, SAI shall have no obligation to maintain or provide any Customer Provided Data and shall thereafter delete or anonymize all Customer Provided Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing, SAI’s obligation to return, delete or anonymize shall not apply: (a) where SAI has established an independent relationship with a User outside the scope of this Agreement; (b) in respect of one (1) copy of Customer Provided Data that SAI may retain as necessary to comply with any legal, regulatory, judicial, audit or internal compliance requirements; and/or (c) to any Customer Provided Data that is retained by SAI on electronic back-up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted.

(f) Surviving Provisions. Any terms which by their nature should survive termination or expiration, shall survive any termination or expiration of this Agreement.

(g) Support. For questions related to use of and support for the Services, you may refer to the PIO help center (https://help.piplanning.io/en/) or email support@piplanning.io.

(a) Relationship of the Parties. The parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

(b) Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a natural disaster, war, act of terror, or any other event beyond the reasonable control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

(c) No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

(d) Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by email. Notices to SAI shall be addressed to the attention of its Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated.

(e) Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

(f) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

(g) Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SAI (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

(h) Governing Law. This Agreement shall be interpreted and governed exclusively by the laws of the State of Colorado without regard to its conflicts of laws rules. This Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

(i) Venue; Waiver of Jury Trial. The state and federal courts located in Denver County, Colorado shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

(j) Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. 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 SAI Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.