Passpack Terms of Use - Subscription Agreement

PLEASE READ THESE TERMS CAREFULLY AS THEY, TOGETHER WITH THE PASSPACK ORDER FORM IN WHICH IT IS REFERENCED, CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THIS TERMS OF SERVICE AGREEMENT. IF YOU DO NOT AGREE WITH THIS SUBSCRIPTION AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.

This Subscription Agreement (Terms of Use) is entered into by and between Passpack, Inc. and the Customer, identified on the Order Form (defined as the invoice (direct billing) or manual order form (MOF), as applicable, agreed to by the Parties in which this Subscription Agreement (Terms of Use) is referenced. The Order Form will include some or all of the following information: the name of Customer, Customer's address and billing information, the length of the Subscription Term, the fees due from Customer including applicable taxes and the Subscription Tier selected by Customer that is purchasing a subscription to the Service and is effective as of the later to occur of the Effective Date set forth in the Order Form or the date of the signature on the Order Form.

Passpack and Customer are collectively referred to as the Parties and individually as a Party. If you are entering into this Subscription Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions. This Subscription Agreement permits Customer to access and use Services pursuant to the terms and conditions contained herein.

These terms of use ("Terms") cover the Customer's use of and access to Passpack services, client software and websites ("Services"). The Passpack Privacy Policy explains how Passpack collects and uses your information, while the Acceptable Use Policy outlines the Customer's responsibilities when using Passpack Services. By using Passpack Services, you're agreeing to be bound by these Terms, our Privacy Policy and the Acceptable Use Policy. If you're using our Services for an organisation, you're agreeing to these Terms on behalf of that organisation.

The Services

Passpack Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, if relevant, and upon Customer payment of the applicable fees, Passpack shall make the Services available to the Customer and Customer Users via the Internet during the Subscription Term. You agree that the purchase of a subscription to the Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Passpack regarding future functionality or features. Subject to the terms of this Agreement and the applicable Order Form, Passpack will provide to the Customer a nonexclusive, worldwide access to and the use of Services during the Term. The date of provision of Services (the “Subscription Start Date”) shall be the date of the direct billing or the Order Form.

Support Services. Passpack will provide standard support services as set out on the website.

Your Data

When you use our Services, you provide us with things like your encrypted data, messages, contacts and so on ("Customer Data"). These Terms don't give us any rights to Your Data except for the limited rights that enable us to offer the Services. At any time during the Subscription Term, Customer and Customer Users retains full control and access to Customer Data.

Passpack needs your permission to do things like hosting Your Data and backing it up. You give us permission to do those things, and this permission extends to trusted third parties Passpack works with. Notwithstanding the above, Passpack shall remain responsible for maintaining the confidentiality and security of Customer Data as per the applicable laws and regulations, and in accordance with Passpack's privacy policy.

Sharing Your Data.  Our Services let you share Your Data with others, so please think carefully about what you share. Customers are responsible for Customer's, Partners' and Users' use of such content, including without limitation its legality, reliability, accuracy, and appropriateness.

Customer Responsibilities

You are responsible for your conduct and its Users use of any of Your Data including without limitation any use of Your Data in violation of applicable laws and regulations, Your policies and Passpack's privacy policy (available at Privacy Policy , and Passpack's Acceptable Use Policy. We may review your conduct for compliance with these Terms and our Acceptable Use Policy. That said, we have no obligation to do so.

Help us keep you informed and Your Data protected. Safeguard your password and Secure Key to the Services and keep your account information current. Don't share your account credentials or give others access to your account. Use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Passpack promptly of any such unauthorized access or use.

You may use our Services only as permitted by the terms of this Agreement and applicable law, including export control laws and regulations and shall not exceed the Use Limit stated in the Order Form. Finally, our Services are not intended for and may not be used by people under the age of 18. By using our Services, you are representing to us that you're over 18. If individual consents are required to collect, use, transfer or otherwise process any Customer Data, including without limitation Customer Data subject to data privacy laws and regulations, Customer shall be solely responsible for obtaining all such consents.

You shall not (a) make the Services available to anyone other than those authorized by the applicable Use Limit, (b) sell, resell, rent or lease the Services, (c) interfere with or disrupt the integrity or performance of the Services or any content contained therein, or (d) attempt to gain unauthorized access to the Services or the underlying systems or networks.

Software

Some of our Services allow you to download client software ("Software"), which may be updated automatically. As long as you comply with these Terms, we give you a limited, non-exclusive, non-transferable, revocable licence to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source licence, we'll make that licence available to you and the provisions of that licence may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.

Scheduling Service interruptions. Notwithstanding anything to the contrary in this Agreement, the Services may interrupt for maintenance and upgrades. Prior to the interruption date such Scheduled Services Interruptions shall be updated on the Service Status. Passpack will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Scheduled Services Interruptions.

Beta Services
We sometimes release products and features that we are still testing and evaluating. Those Services have been marked as beta, preview, early access or evaluation (or words or phrases with similar meaning) and may not be as reliable as Passpack's other Services, so please bear that in mind.

Intellectual Property

Proprietary Rights. As between the Parties copyright, trademark and other US and foreign laws therein protect the Service and all intellectual property. These Terms don't grant you any right, title or interest in the Service or the intellectual property rights therein, other than the limited rights and licenses noted in this Agreement. All Passpack trademarks and other intellectual property is, and shall remain the sole and exclusive property of Passpack, subject only to the terms of the limited license granted to Affiliate Partners by the Affiliate Program Terms and Conditions.

Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any User or Partner to (i) permit any third party to access or use the Service except as permitted herein or in an Order Form, (ii) copy, modify or create derivative works based on the Services or the Documentation, (ii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part or content of the Services or Documentation, (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Services.

Customer feedback. Passpack welcomes feedback and shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Service.

Paid Accounts

Billing. If You have directly purchased and subscribed to the Services through the Passpack website the Subscription Fees including applicable taxes will be charged at the time of transaction through Stripe credit card (direct billing). Otherwise, the Subscription Fees payable for the Services are based on Customer's number of Users as set forth in the Order Form. Except as otherwise set forth herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on subscription Services purchased, and (iii) payment obligations are non-cancelable and fees paid are non-refundable, except as stated below. A direct billing Customer may purchase additional subscription Services for its Users at any time through their Passpack plan. The fees for the additional users will be invoiced at the time of the change and charged to the credit card on file. Some countries have mandatory local laws regarding your cancellation rights, and this paragraph doesn't override these laws.Subscriptions will automatically renew at the rates then in effect and your payment provider will be charged upon renewal unless you cancel your subscription at least 30-days before renewal. By subscribing, you authorize us to charge your Payment Provider at the beginning of any Subscription period if you have not cancelled your Account by such time. If we cannot process payment, we will reach out to you to update your Payment Provider information. If we do not receive payment within fifteen (15) days of the renewal, we may terminate your Subscription.

Where the changes have been made through an MOF such additional Users and Fees shall be due payable within 30 days of the invoice date. Passpack shall, on quarterly basis, reconcile Customer's account for any additional Users.

You're responsible for all applicable taxes and we'll charge tax when required to do so.

Suspension of the Services. If any charge owing by Customer is thirty (30) days or more overdue, Passpack may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.

Refunds. You can cancel your Passpack Paid Account at any time. While all amounts paid are non-refundable, certain refund requests for Subscriptions may be considered by Passpack on a case-by-case basis and granted at the sole discretion of Passpack. Refunds are issued if required by law.

Downgrades. Your Paid Account will remain in effect until it's cancelled or terminated under these Terms. If you don't pay for your Paid Account on time, we reserve the right to suspend it.

Changes. We reserve the right to update the price for Services at any time and price changes will be effective as of your next billing cycle. In accordance with applicable law, we will notify you in a timely manner of any price changes by publishing on our website, emailing, quoting, or invoicing you.

Confidentiality

Confidential Information. As used herein Confidential Information shall mean all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information of Customer shall include Customer Data; Confidential Information of Passpack shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving Party; (b) was in the receiving Party's lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; (e) is required to be disclosed by law; or (f) De-Identified Data.

Protection of Confidential Information. Each Party agrees to (i) hold the other's Confidential Information in confidence, (ii) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and (iii) not use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder or as otherwise authorized by this Agreement. Notwithstanding the foregoing, either Party may disclose any of the other Party's Confidential Information to its employees or consultants that have a need to know such Confidential Information in connection with such Party's performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this paragraph.

Protection of Customer Data. Without limiting the above, Passpack shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Passpack shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with the "Compelled Disclosure" paragraph below or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer's request in connection with Customer support matters.

Compelled Disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party's cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party's Confidential Information as part of a civil proceeding to which the disclosing Party is a party, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Services "AS IS"

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES IS PROVIDED ON AN AS IS BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING. WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PASSPACK DOES NOT WARRANT (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER'S ACCESS THERETO WILL BE UNINTERRUPTED.

Limitation of Liability

IN COUNTRIES WHERE THE FOLLOWING TYPES OF EXCLUSIONS AREN'T ALLOWED, PASSPACK IS RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL, OR OUR BREACH OF OUR AGREEMENT WITH YOU. THIS PARAGRAPH DOESN'T AFFECT CONSUMER RIGHTS THAT CAN'T BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.

IN COUNTRIES WHERE EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE ALLOWED, PASSPACK, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WON'T BE LIABLE FOR:

i. ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR

ii. ANY LOSS OF USE, DATA, BUSINESS OR PROFITS, REGARDLESS OF LEGAL THEORY.

THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT PASSPACK OR ANY OF ITS AFFILIATES HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.

IN THE USE OF THE SERVICES FOR COMMERCIAL AND BUSINESS PURPOSES, PASSPACK AND ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS OPPORTUNITY. Passpack AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USERS OF THE SERVICES.

OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION), THE LIABILITY OF PASSPACK TO CUSTOMER FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE), IS LIMITED TO THE GREATER OF $20 USD OR 100% OF THE AMOUNT THE CUSTOMER HAS PAID UNDER THEIR THEN CURRENT SERVICE PLAN WITH PASSPACK. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO PASSPACK HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PASSPACK WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

Term and Termination

Term of Agreement. Subject to the paragraph below, this Agreement commences on the Effective Date and continues until the expiration of the Subscription Term specified in the Order Form. Except if the Parties have agreed and stated otherwise in an Order Form, this Agreement and the Order Form shall automatically renew. The Parties may renew an Order Form for changes to the pricing, the number of Users, change in Services from Teams to Business accounts etc.

Termination. We reserve the right to suspend or terminate your access to the Services with notice to you if (a) you're in breach of these Terms or (b) you're using the Services in a manner that would cause a real risk of harm or loss to us or other users. We'll provide you with reasonable advance notice via the email address associated with your account to remedy the activity that prompted us to contact you and give you the opportunity to export Your Data from our Services. If after such notice you fail to take the steps we ask of you, we'll terminate or suspend your access to the Services. We won't provide notice before termination where: (a) you're in material breach of these Terms, (b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or (c) we're prohibited from doing so by law.

Notwithstanding the foregoing, if at any time Customer is not satisfied with Passpack's implementation services or setup of the Services or otherwise believes that Passpack has failed to satisfactorily complete the setup of the Services, then Customer's sole remedy shall be to notify Passpack of the failure or its dissatisfaction and Passpack shall then use commercially reasonable efforts to correct the implementation services or to properly setup the Services. If the Parties agree that Passpack is unable to complete the setup of the Services as originally agreed by the Parties under this Agreement and related Order Form, then Customer may terminate this Agreement upon written notice to Passpack.

Upon expiration or termination of this Agreement, Passpack will: (a) immediately cease use all Customer's Confidential Information; and (b) upon Customer's written confirmation and request, within thirty (30) calendar days after such expiration or termination, Passpack will confirm in writing to the Customer that it has permanently erased, destroyed or returned to the Customer its Confidential Information, as well as any copies thereof on any media or in any form. Notwithstanding the foregoing, Passpack may retain (i) Customer Data for a period of thirty (30) days in order to fulfill its obligations under Section 2.6, and (ii) any Customer Data strictly as required by applicable laws, regulations, court orders, subpoenas or other legal process for archival purposes. In addition, any failure of Passpack to return or destroy electronic copies of Customer Data that are automatically generated through data backup and/or archiving systems shall not be deemed to violate the provisions of this Section, provided that Passpack shall not use such back-ups or archived copies for any purpose and such copies shall be subject to all confidentiality obligations set forth herein.

Refunds. Upon any termination for cause by Customer Passpack shall refund Customer any prepaid fees covering the unused portion of the Subscription Term. Upon any termination for cause by Passpack, Customer shall pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination. In no event shall any termination relieve the Customer of its obligation to pay any fees payable to Passpack for any period prior to the effective date of termination.

Legal and Regulatory Compliance

Each Party shall comply with the export laws and regulations of United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) each of Passpack and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Service in violation of any U.S. export embargo, prohibition or restriction. In addition, Passpack and the Customer shall comply with all applicable laws, rules, regulations and guidance (whether or not legally binding) of competent regulators in respectively the provision of and use of the Services, including without limitation the Directive 2002/58/EC, Directive 95/46/EC (and applicable implementing legislation in EU member-states) and Regulation (EU) 2016/679 (GDPR) and any legislation at the EU level or national level in any jurisdiction currently part of the European Economic Area which amends or replaces any of the foregoing and where applicable, the Canadian federal CAN-SPAM ACT OF 2003 (CAN-SPAM), the California Consumer Protection Act, and HIPPA. Notwithstanding with the foregoing, the Customer shall comply with Passpack's privacy policy.

Resolving Disputes

Talk to us. We want to address your concerns without needing a formal legal case. Before filing a claim against Passpack, you agree to try to resolve the dispute informally by contacting our support team. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Passpack may bring a formal proceeding.

Arbitration

Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, or the Passpack Services shall be settled solely by arbitration administered by The American Arbitration Association ("AAA") under its Commercial Arbitration Rules (available to view at www.adr.org), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties waive all rights to trial by jury or by any court. Notwithstanding the rules of AAA, the following shall apply to all arbitration proceedings:

• The Federal Rules of Evidence shall apply in all cases;
• The parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure;
• The parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure;
• The arbitration shall occur within 180 days from the date on which the arbitrator is appointed, and shall last no more than three business days; and
• The parties shall be allotted equal time to present their respective cases, including cross-examinations.

All arbitration proceedings shall be held in the City of Salt Lake, Utah unless the laws of the state in which a Customer resides expressly requires the application of its laws, in which case the arbitration shall be held in the capital of that Customer's state. There shall be one arbitrator, who shall have expertise in business law transactions, selected from the panel, which AAA provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration including legal and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary be reduced to a judgment in any court of competent jurisdiction. This agreement to arbitration shall survive any termination or expiration of this Agreement.

The parties and the arbitrator shall maintain the confidentiality of the entire arbitration process and the outcome thereof.  Notwithstanding the foregoing, nothing in this arbitration provision shall prevent either party from applying to and obtaining from any court having jurisdiction any form of equitable relief available, including an injunction, to safeguard and protect its intellectual property rights under this Agreement.

Governing Law, Jurisdiction and Venue

This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without reference to its principles of conflicts of law, except that the Federal Arbitration Act shall govern all matters relating to arbitration. Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Salt Lake County, State of Utah.

Entire Agreement

These Terms, including the Passpack Privacy Policy and Accessible Use Policy [constitute the entire agreement between the Parties and supersede and replace any other prior or contemporaneous agreements, or terms and conditions, written or oral applicable to its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. These Terms create no third-party beneficiary rights.

Waiver, Severability & Assignment

Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of that right to do so later. Severability If any provision of this Agreement is found by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Terms will remain in full effect and an unenforceable term will be substituted reflecting our intent as closely as possible. Assignment. Customers may not assign, sublicense, or transfer any of your rights under these Terms, any right to maintenance and/or support, or any rights or obligations hereunder and any such attempt will be void without prior written consent of Passpack. Passpack may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer upon written notice to Customer. Passpack may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Force Majeure

Neither Party shall be in default if a failure to perform any obligation hereunder is caused solely by supervening conditions beyond that Party's reasonable control, including acts of God, civil commotion, strikes, labor disputes and governmental demands or requirements. When a Party's delay or non-performance continues for a period of five (5) days or more, the other Party may terminate this Agreement without penalty. Any prepaid amounts shall be refunded on a prorated basis.

Notices

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing (email is acceptable) and delivered to the addresses set forth on the Order Form for each Party and shall be deemed to have been delivered upon the date of delivery.

Modifications

We may revise these Terms from time to time to better reflect (a) changes to the law, (b) new regulatory requirements, or (c) improvements or enhancements made to our Services. If an update affects your use of the Services or your legal rights as a user of our Services, we'll notify you prior to the update's effective date by sending an email to the email address associated with your account or via an in-product notification. These updated Terms will be effective no less than 30 days from when we notify you. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Terms.