Pexdy. (HEREIN REFERRED TO AS “Pexdy”) PROVIDES A PLATFORM FOR ANY WEBSITE TO USE to increase your buying customers checkout conversion (THE “SERVICE”). BY SIGNING UP AND USING THE SERVICE, YOU (HEREIN REFERRED TO AS “WEBSITE”) AGREE TO THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”):
Provision of Services. Pexdy will make the Service available to Website pursuant to these terms and conditions. Subject to the terms and conditions of this Agreement, Pexdy hereby grants Website a non-exclusive right to access and use the Pexdy Service solely for its internal business purposes. Pexdy retains the right to change, modify, disable, or otherwise terminate access to the Pexdy Service at any time for any reason or no reason.
Limitations: The use of the Service by Website is subject to the following restrictions:
The Service will be used or accessed only by an authorized representative of the Website
Website will not use Pexdy Service to process data on behalf of third parties;
Website will not reverse engineer, decompile, disassemble or otherwise create, attempt to create, or permit or assist any third party to create a source code version of the Pexdy Service;
Website will not transfer, distribute, sell, resell, lease, sublease, license, sub-license or assign the Pexdy Service or the license granted by this Agreement or otherwise offer the Pexdy Service for use on a service bureau, outsourced, or value added basis;
Website will not use Pexdy Service or Documentation in any manner that will use, make, prepare derivative works of, or distribute, unauthorized copies of third party copyrighted material;
Website will not use the Pexdy 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; and
Website will not use the Pexdy Service to store or transmit viruses or other harmful or malicious code, files, scripts, agents or programs.
Website Responsibilities. Website will (a) be responsible for its compliance with this Agreement and use of the Pexdy Service; (b) be solely responsible for the accuracy, quality, integrity and legality of Website’s data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Pexdy Service and Documentation and notify Pexdy promptly of any such unauthorized access or use; and (d) use the Pexdy Services only in accordance with the documentation and applicable laws and regulations.
PRICING & CANCELLATION
Pricing. By using the Service, you agree that Pexdy will request that you upgrade and pay a monthly fee to receive upgraded versions of the Service, including additional volume and features, as outlined on the pricing page, if your use of the Service falls into one of the qualifying paid plans.
Payment. If you are paying subscriber to the Pexdy Service, Pexdy will use a third-party payment processor to request your credit card information and process payment. All subscription plans will automatically renew on the same day each month as the initial payment, until cancelled.
Cancellation. If you’d like to cancel your paid subscription, please email support@Pexdy.com or login to your account to cancel your subscription. Once you cancel your subscription, Pexdy will no longer charge your credit card for future subscription payments, and your account will be disabled down to a non-paid account level.
Refunds. As a company policy, we do not provide partial refunds for unused monthly or annual plans, unless a system malfunction caused a problem.
Pexdy’s Termination Rights. Pexdy maintains the full right to terminate your access to the Service at any time for any reason.
OWNERSHIP AND CONFIDENTIALITY
Pexdy’s Ownership Rights. Pexdy exclusively owns all right, title and interest in and to the Pexdy Service and associated documentation. Except for the express access right granted hereunder, Pexdy reserves all rights, title and interests in and to the Pexdy Service, Documentation and Pexdy’s Confidential Information.
Feedback. Website may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Website Feedback”) to Pexdy with respect to the Pexdy Service. Pexdy will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Website hereby grants Pexdy a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Website Feedback; and (b) use the Website Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Website Feedback and/or any subject matter of the Website Feedback.
Use of marks and case studies: Pexdy may, at its sole discretion, reference the Website as a user of the Pexdy service in Pexdy marketing collateral, including website content, blog content, email messages, and more.
REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
Website represents, warrants and covenants to Pexdy as follows: (a) it has full power and authority to enter into and perform this Agreement; (b) this Agreement has been duly authorized and constitutes a binding obligation enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy laws or other laws affecting the rights of creditors generally; (c) the person(s) executing this Agreement on Website’s behalf has actual authority to bind Website to this Agreement; and (d) such party’s execution and performance of this Agreement does not and will not violate or conflict with any provision of such party’s governing corporate instruments or of any commitment, agreement or understanding that such party has or will have to or with any person or entity.
Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, Pexdy MAKES NO AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Pexdy DOES NOT GUARANTEE THAT THE Pexdy SERVICES WILL MEET ALL OF Website’S REQUIREMENTS. Website REPRESENTS AND ACKNOWLEDGES THAT Pexdy DOES NOT WARRANT THAT THE Pexdy SERVICES WILL OPERATE AT ALL TIMES IN AN UNINTERRUPTED OR ERROR FREE FASHION, AND Pexdy DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO ANY SUCH INTERRUPTION OR ERROR.
Website will defend Pexdy against any Claim made or brought against Pexdy by a third party arising out of Website’s use of the Service and will indemnify Pexdy for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Pexdy in connection with any such Claim; provided that (a) Pexdy will promptly notify Website of such Claim, (b) Website will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Website may not settle any Claim without Pexdy’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Pexdy of all liability) and (c) Pexdy reasonably cooperates with Website in connection therewith.
LIMITATION OF LIABILITY
WITH THE EXCEPTION OF LIABILITY ARISING FROM Website’S VIOLATIONS OF SECTION 1, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF LIABILITY ARISING FROM Website’S VIOLATIONS OF SECTION 2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY Website DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE FOREGOING WILL NOT LIMIT Website’S OBLIGATIONS TO MAKE PAYMENTS UNDER SECTION 4 ABOVE.
Term. The term of this Agreement will commence upon Website’s sign up and acceptance of these terms and conditions. Thereafter, the term of this Agreement will automatically continue provided, however, that Pexdy may terminate this Agreement and available of the Service to Website at any time without notice. If Website desires to discontinue Service, Website must notify Pexdy of its intent to terminate the relationship and Website may uninstall Pexdy and discontinue Service at Website’s own expense.
Right to Suspend. Pexdy may temporarily suspend Website’s or any Authorized User’s access to any portion of the Pexdy Services if Pexdy reasonably determines that: (a) there is a threat or attack on the Pexdy Services or other event that may create a risk to the Pexdy Services, Website or any other Website of Pexdy; (b) Website’s use of the Pexdy Services or any Website Data disrupts or poses a security risk to the Pexdy Services or any other Pexdy Website; or (c) Website is using the Pexdy Services for fraudulent or illegal activities (collectively, “Service Suspensions”). Pexdy will provide written notice of any Service Suspension to Website and to provide updates regarding resumption of Pexdy Services following any Service Suspension. Pexdy will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Website may incur as a result of any Service Suspension.
Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision will be deemed not to be a part of this Agreement.
Governing Law. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
Notices. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed facsimile or e-mail; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the first page of this Agreement or such other addresses designated pursuant to this Section 9.8.
Entire Agreement. This Agreement, including these Terms and Conditions, constitutes the entire agreement between the parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both parties.
Titles. All article and section titles herein are provided for general information and reference only. Thus, the subject matter in each section herein will not be construed by reference to the title nor will the scope of section be limited in any manner based on the title of that section.
Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”); provided that, (a) the party relying upon this Section 9.12 will have given the other party written notice thereof promptly and, in any event, as soon as reasonably possible under the circumstances; and (b) will take all steps reasonably necessary to mitigate the effects on the other party of the Force Majeure Event upon which such notice is based.