Parakeet Systems Inc. Software as a Service Subscription Agreement
updated April 14, 2018
The following is a summary of the Agreement. It is provided as a convenience. The language below the summary is the binding Agreement. The capitalized terms are defined in the Agreement.
· This is a business to business service.
· Subscriber is a business and not a consumer.
· Subscriber must pay for the Services and Transactions.
· The Agreement may be terminated at any time due by Parakeet, especially due to a breach of the obligations by Subscriber.
· All disputes between the parties will be arbitrated.
· Parakeet may terminate or change the Services or any portion of functionality at any time.
· Parakeet provides the platform to engage Language Services Providers to allow ordering, managing and performance of language translations Transactions.
· Translators and Language Services Providers utilize the Services to offer, manage, control quality and deliver its services.
· Parakeet does not perform, manage, or control quality of any language translations.
· Subscriber will protect Parakeet’s intellectual property and not copy, modify, reverse engineer, disassemble, reverse assemble or reverse compile the Services, replicate the functionality of the Services in any manner or disclose to others how the Services function.
· If Subscriber is an Translator or LSP providing, managing, or performing quality control activities for language translation services it has the necessary proficiency, skill and experience to provide such services.
· Subscriber shall indemnify Parakeet for any third-party claims arising due to Subscribers acts or omissions.
· Subscriber is responsible for all its End Users actions using the Services.
· Subscriber Content uploaded to or translated on the Services shall not contain personally identifiable information of any person, including but not limited to, medical information or financial information (e.g. credit card or financial institution account numbers), personal address information such as email or physical address, driver’s license, social security, passport or other government issued identification numbers. Such information should be redacted prior to initiating a Transaction.
This Software as a Services Subscription Agreement (the “Agreement”) sets out the terms, conditions, rights and obligations under which Parakeet Systems Inc. a Delaware corporation and its affiliates under common ownership or control (hereinafter collectively, (“Parakeet”) shall provide the Subscriber (stated on the signature page, below) and its End Users with access to and the right to engage in Transactions with LSP (defined below) for language translation and management services and functionality, and other services, and all Parakeet Data and information thereon that Parakeet may offer from time to time (collectively all the foregoing are the “Services”), available at www.parakeet.net.
In consideration of the mutual representations, warranties, covenants and agreements hereinafter set forth, Parakeet and Subscriber agree as follows:
1.1. “Content” means all data, including all text, sound, video or image files that are uploaded to and downloaded from the Services for Transactions and all information and data with regard to such Transactions.
1.3. “End User” means any natural person who is authorized by the Subscriber, to access and utilize the Services. End User access rights and limitations are stated in the Documentation. End User types include:
1.3.1. Account Owner is the owner of the Account, and has the highest level of functionality and security clearance and can authorize a System Admin, Translator or User.
1.3.2. System Admin can authorize other Users or Translators, and determines which functionality is available.
1.3.3. Project Manager manages the execution of translation Transactions and other functionality as proscribed by the System Admin or Account Owner.
1.3.4. Translator is a third-party service provider entity that offering language translation services, including but not limited to, language translation, workflow management, quality control, translators and other services on the Parakeet Services platform that can perform such services and related tasks in the Translation Studio (as defined in the Documentation) but does not have access to the Portal (as defined in the Documentation).
1.3.5. User can submit and retrieve translation Transactions and other functionality as proscribed by the System Admin or Account Owner.
1.4. “Fees” means the fees Parakeet charges for access to the Services and for Transactions, including but not limited to Subscription Level monthly fees, Transaction fees, and any other applicable fees or costs as stated on the Pricing Page.
1.5. “Language Services Providers” or “LSP” is a third-party service provider entity that is a subscriber of the Services offering language translation services, including but not limited to, language translation, workflow management, quality control, translators and other services on the Parakeet Services platform.
1.6. “Parakeet Account” means any account established and maintained on the Services by a Subscriber through which Subscriber’s End Users’ will engage LSP to order, manage and/or perform Transactions and to administer End Users and other tasks.
1.7. “Parakeet Data” all information in any way related to the operation and usage of Services and Transactions thereon.
1.8. “Pricing Page” is the Parakeet website page located at www.parakeet.net/pricing stating the Fees (defined in the Payment of Fees section) that shall be charged to Subscribers, third party payment processor information, and is subject to change upon thirty (30) days’ notice posted on that page.
1.9. “Subscriber” means the legal entity that executed the Agreement, which is authorized by Parakeet to access and utilize the Services pursuant to the terms and conditions of this Agreement and includes Subscriber’s End Users.
1.10. “Subscription Level” means the feature level of Services and Fees applicable for that level which Subscriber has selected.
1.11. “Transaction(s)” shall refer to orders/requests for and performance of language translation of Content using the Services, the management, quality control, scheduling and delivery of such language translation, and all communications related thereto.
2.1. Language Translation Disclaimer. The Services is a platform to order, request, manage, control quality and/or perform language translations however, Parakeet does not provide language translations.
2.2. All language translations, orders, management and quality control Transactions via the Services are created and/or managed by Translators or LSPs. Parakeet Services is the platform to engage and manage the workflow.
2.3. Language translations may contain errors. PARAKEET DISCLAIMS ANY LIABILITY ARISING FROM ANY LANGUAGE TRANSLATION, MANAGEMENT OR QUALITY CONTROL OR TRANSACTION ACTIVITY. A Subscriber may report a language translation inaccuracy or error by contacting the applicable LSP utilized for its Transaction by using the contact information on page www.parakeet.net/contact
2.4. Use of Services Legally Binds. By using the Services, Subscriber shall be legally bound and abide by the terms of this Agreement, any other applicable laws, and rules and regulations thereunder, all as may be amended from time to time as provided herein.
3. Authorization to Access the Services.
3.1. Provided Subscriber is current on its payments of Fees to Parakeet, Parakeet hereby grants Subscriber and its End Users a limited, non-exclusive, non-transferable, revocable license to access the Services, to engage in Transactions with Translators or LSPs and utilize the Services to manage such tasks.
3.2. Failure of Subscriber to be current on payment of Fees may result in immediate termination of this Agreement.
3.3. Subscriber acknowledges that Transactions submitted pursuant to the Services shall be deemed to be “in writing” and to have been “signed” for all purposes and that any electronic record of any such Transaction will be deemed to be “in writing.” Subscriber cannot contest the legally binding nature, validity or enforceability of the Agreement or any Transaction submitted by an End User via, through or on the Services based on the fact that it was entered and executed electronically and expressly waives any and all rights it may have to assert any such claim.
3.4. Subscriber and its End Users shall obtain access to the Services (“Access”) via an Internet connection.
3.5. Subscriber assumes all risk and bears sole responsibility for establishing Access including, but not limited to, selecting and utilizing its telecommunications, internet and telecommunications provider(s), paying all applicable costs for establishing such access, and bearing all risk associated with any malfunction thereof.
3.6. Subscriber shall not utilize the Services for any illegal purpose.
4. End User Access Credentials and Passwords.
4.1. Subscriber must invite all persons prior to permitting any access to the Services. Subscriber’s Account Owner or System Admin shall invite all End Users to the Services. Each End User shall establish her/his End User name and password “Access Credentials”
4.2. End Users shall not share Access Credentials.
4.3. Subscriber shall notify Parakeet of any change in the authorization of any End User or the departure of any End User from Subscriber’s employ or retention.
4.4. Subscriber shall be bound by any and all End Users actions using the Services, including but not limited to, all Transactions and Fees incurred, any breach by the End User of an obligation in this Agreement or End Users actions causing injuries or damage of any kind to a third-party.
4.5. Subscriber shall affirmatively advise End Users of the obligations in this Agreement.
4.6. Subscriber will be solely responsible for controlling and monitoring End User’s use of the Services and the use of the End Users’ Access Credentials and will not disclose, or permit any other person to disclose to any third party, the Access Credentials.
4.7. Subscriber will promptly notify Parakeet of: (i) any known unauthorized disclosure or use of a Subscriber Access Credential; (ii) any known unauthorized access to the Services; and (iii) any known loss of any Access Credential to.
5. Intellectual Property.
5.1. The Services and Parakeet Data are the exclusive proprietary property of Parakeet and its licensors. Subscriber will have no rights with respect to the Services or Parakeet Data other than those limited licenses expressly set forth in this Agreement.
5.2. The Services are protected by intellectual property laws including, but not limited to, laws relating to copyrights, patents, trade secrets, and trademarks, which are and, shall remain the sole property of Parakeet. Except for the limited license as expressly provided in this Agreement, nothing in this Agreement or displayed on or contained in the Services or elsewhere, should be construed as granting, expressly, by implication, estoppel or otherwise, any license or right to use any copyrighted materials, patents, trade secrets, trademarks or other proprietary rights of Parakeet and all such rights not expressly granted herein are reserved to Parakeet.
5.3. Subscriber shall not in whole or in part copy, modify, reverse engineer, disassemble, reverse assemble or reverse compile the Services, or any of the content or information displayed thereon or issued by the Services, and it will not communicate, distribute, rent, sell, retransmit, redistribute, release or re-license the Services.
5.4. Subscriber shall not create or enhance any software or an online service offering that competes with Parakeet or the Services.
5.5. Subscriber shall not, without Parakeet’s prior written consent, directly or indirectly, redistribute, or facilitate redistribution of, all or any portion of the Services.
5.6. Trademarks. “Parakeet” is a trademark of Parakeet Systems Inc. Nothing in this Agreement or displayed on any website operated by Parakeet or elsewhere, should be construed as granting, expressly, by implication, estoppel or otherwise, any license or right to use any trademark or servicemark without the express written permission of Parakeet.
5.7. Subscriber Content.
5.7.1. Subscriber Content shall not contain personally identifiable information of any person, including but not limited to, medical information or financial information (e.g. credit card or financial institution account numbers), personal address information such as email or physical address, driver’s license, social security, passport or other government issued identification numbers. Such information should be redacted prior to initiating a Transaction.
5.7.2. Notwithstanding the provisions in the subsection above, the parties hereby acknowledge and confirm Subscriber retains all ownership and intellectual property rights in and to Subscriber’s Content. Subscriber is solely responsible for maintaining and backing up any Subscriber Content that it uses or caused to be created with the Service. Subscriber, not Parakeet, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use such Subscriber Content. Parakeet shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Content that Subscriber uses with the Service.
6. Confidentiality of Each Party’s Confidential Information.
6.1. Confidential Information is any and all proprietary, secret or non-public information in any form obtained by one party (“Recipient”) from the other (“Discloser”) arising out of or related to the provision or use of the Services including, but not limited to, Content, translations, trade secrets, vendors, contractors, customers, suppliers, translators, third-party names and contact details, financial, health, or safety information, processes, methods, techniques, strategies, designs, computer software and other proprietary data, research, information or documentation related thereto and Parakeet Data. Confidential Information is confidential and proprietary information of the Discloser. Confidential Information shall include all information and materials marked “Confidential” or other similar designation, or if the information is of a type that a reasonable person would recognize as commercially sensitive, whether written or oral, tangible or intangible.
6.2. Subscriber and Parakeet may each be both a Recipient and a Discloser
6.3. Recipient shall hold Confidential Information of Disclosers in confidence.
6.4. Recipient shall not disclose such information to third parties (other than to Subscriber’s employees, its affiliates and their employees or its agents) or use such information for any purpose whatsoever other than to accomplish Transactions or operate the Services as contemplated by this Agreement.
6.5. Recipient shall limit access and use to any Confidential Information of Discloser received only to the employees, agents, and/or contractors of Recipient who have a need to know and only for use in connection with use of the Services and Transactions and shall safeguard all Confidential Information received by using a reasonable degree of care, but not less than the degree of care used by the Recipient in safeguarding its own similar information or material.
6.6. All Confidential Information of Disclosers in the possession, custody, or control of Recipient on the date of termination of this Agreement shall promptly be returned to Discloser (or at Discloser’s option, destroyed and such destruction certified in writing), except for any such information retained for required legal or regulatory purposes. Any Confidential Information that is retained by Recipient, at the time of termination, shall remain subject to the terms of this confidentiality provision for three years after the termination of the Agreement.
6.7. Confidential Information shall not include information which is: (i) in or becomes part of the public domain other than by disclosure by Recipient in violation of this Agreement; (ii) known to or obtained by Recipient from a third party without an obligation of confidentiality; (iii) independently developed by Recipient outside of this Agreement without the use of Discloser’s Confidential Information or (iv) in the possession of the Recipient on a non-confidential basis prior to the disclosure by the Disclosers.
6.8. Notwithstanding the foregoing, Recipient may disclose Confidential Information if and to the extent required to be disclosed by applicable law or regulation, or pursuant to a subpoena or order of a court or regulatory, self-regulatory or legislative body of competent jurisdiction, provided that to the extent such information is not regular reporting or routine inspection information of a governmental/regulatory agency, Recipient provides Discloser with, if permissible, prompt notice of such requirement, subpoena or order (together with copies thereof), minimizes such disclosure to the Confidential Information specifically required to be disclosed, and the persons or entities entitled to receive same pursuant to such law, regulation, subpoena or order, and, if permissible, delays such disclosure until Discloser have had a reasonable opportunity to resist or object to such disclosure and/or to seek confidential treatment of the Confidential Information unless Recipient is ordered to do otherwise, and requests that the governmental/regulatory recipient maintain the confidentiality of such Confidential Information.
7. Payment of Fees.
7.1. Subscriber shall be responsible for and pay to Parakeet all Fees as set forth on Pricing Page associated with the Services and those Fees applicable to Transactions of any of its End Users.
7.2. Parakeet may modify the Pricing Page from time to time upon not less than thirty (30) days’ notice. Any modification of the Fees will become automatically effective thirty (30) days after the change was first posted period.
7.3. Each month on the monthly anniversary of the date Subscriber selected a paid Subscription Level, Parakeet will produce a statement (“Billing Statement”) for Subscriber’s Fees for Services for the prior month, and a copy of the Billing Statement will be saved and available for review in Subscriber’s Parakeet Account on the Services, and a copy will be emailed to Subscriber’s Account Owner’s email address on file. Parakeet will automatically and immediately charge Subscriber’s established payment account on the date of the Billing Statement. If for any reason the Billing Statement is not paid (as provided for above) within five (5) days of issuance of the Billing Statement,
7.3.1. Parakeet may immediately terminate Subscriber’s Access to the Services, and
7.3.2. All unpaid amounts shall bear interest at the monthly interest rate of the lesser of: (i) one half percent (0.5%); or (ii) the maximum rate of interest permitted by law.
7.4. If Subscriber changes its Subscription Level during any monthly period, the Subscription Level Fees will be pro-rated for the period of the month that each Subscription Level was selected.
7.5. If Subscriber disputes any Fees it must send an email to firstname.lastname@example.org within (15) calendar days of the date of the Billing Statement stating the date of the Billing Statement and identifying the items which are incorrect. Subscriber waives any billing claims it may have if it does not dispute the Billing Statement within the fifteen-day period.
8.2. Transfer of Information. Information collected through the Services, including Subscriber Content and Parakeet Data shall be provided to the Translators or LSP handling any Transaction, and other Parakeet affiliates, agents or vendors assisting Parakeet in the operation of the Services and is stored and processed in the United States or any other country in which Parakeet or its affiliates or agents maintain facilities. By using the Service, Subscriber consents to any such transfer of its information outside of its country.
8.3. Performance and Usage Data. In order to provide the Service, Parakeet may collect, analyze and use aggregated, technical data and related information (such as feature usage, device metrics/metadata) to facilitate market research, product development/improvement and to provide support and maintenance Services and may automatically upload this information from Subscriber’s computers. Parakeet may use, store or disclose such information or material derived from such information to further enhance the functionality of or market additional services to Subscriber the Services.
8.4. Filtering Technology. Parakeet may use technology or other means to protect the Service, protect its Subscribers and/or stop Subscribers from breaching this Agreement. These means may hinder Subscriber’s use of the Service.
8.5. Communications. Because the Services is an online application, Parakeet may need to occasionally notify End Users of the Services of important notices or announcements regarding the operation of the Service, including any changes to Parakeet’s terms, conditions and policies relating to the Service. As a condition of the Service, End Users agree to receive such communications from Parakeet. Subscriber also receive promotional or marketing communications from Parakeet, its affiliates, marketing or translation vendors from time to time.
9. Parakeet represents, warrants and covenants that:
9.1. it is duly organized, validly existing, and in good standing under the laws of the state of its organization;
9.2. it has all necessary power and authority to execute and perform this Agreement;
9.3. this Agreement is legal, valid, binding and enforceable against Parakeet.
9.4. it has the right to offer the Services to Subscriber.
9.5. it does not perform, manage, or control quality of any language translations or services.
10. Subscriber represents, warrants and covenants that:
10.1. It is a business and not a consumer.
10.2. it will protect Parakeet’s intellectual property and not copy, modify, reverse engineer, disassemble, reverse assemble or reverse compile the Services, replicate the functionality of the Services in any manner or disclose to others how the Services function.
10.3. if Subscriber is an LSP providing, managing, or performing quality control activities for, language translation services, it has the necessary proficiency, skill and experience to provide such services.
10.4. Subscriber shall comply with any and all applicable governmental laws, rules and regulations applicable to its access to and use of the Services and shall not use the Services in any jurisdiction in which to do so would, to the its knowledge, be illegal or otherwise prohibited.
10.5. Subscriber is duly organized, validly existing, and in good standing under the laws of its jurisdiction.
10.6. it has all necessary power and authority to execute and perform this Agreement.
10.7. this Agreement is legal, valid, binding and enforceable against it.
10.8. neither the execution of, nor performance under, this Agreement by Subscriber violates or will violate any law, rule, regulation or order, or any material agreement, document or instrument, binding on or applicable to it; and its access to and use of the Services will be in accordance with all applicable federal, state, and local laws, rules and regulations.
11.1. Subscriber understands and acknowledges that Parakeet may, in its sole discretion, with or without cause, temporarily or permanently cease to operate the Services; and that in the event of any material breach by Subscriber of this Agreement, Parakeet may, in its sole discretion, with or without cause, (i) temporarily or permanently cease to make available accessible all or certain functionality or components of the Services, or (ii) suspend, terminate or restrict at any time Subscriber’s or its End Users’ access to and utilization of the Services, provided, however, that Parakeet will notify Subscriber prior to taking any such action if commercially feasible.
11.2. Subscriber understands and acknowledges that its access to and utilization of the Services will be monitored by Parakeet for its own lawful purposes and not for the benefit of Subscriber.
11.3. Subscriber understands and acknowledges that Parakeet does not guarantee continuous, uninterrupted or secure access to the Services and acknowledges that transmission of data on any electronic component of the Services may be subject to: interruption; interference; blackout; failure; or Services unavailability or failure; hardware or software malfunction or failure; interception by third parties; unauthorized access; theft; modification, inaccuracy or other errors. Notwithstanding the previous sentence, Parakeet shall take reasonable measures to safeguard the Services from interception by third parties, interruption or interference.
11.4. Subscriber understands and acknowledges that the reliability, availability, performance and other aspects of the Internet and telecommunications are beyond Parakeet’s control.
11.5. Subscriber understands and acknowledges that Subscriber and its End Users are prohibited from using the Services for anything that is unlawful, or posting on, or transmitting through, the Services any data or Content that is unlawful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially or ethnically based material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law.
12. Disclaimer of Warranties.
12.1. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO, NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS IN RELATION TO THE SERVICES OR LSP. PARAKEET DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS. THE PARAKEET EXPRESSLY DISCLAIMS THE ACCURACY AND ADEQUACY OF LANGUAGE TRANSLATIONS, INFORMATION, TRANSACTIONS, LSPS PROVIDED THROUGH THE USE OF THE SERVICES. SUBSCRIBER IS SOLELY RESPONSIBLE FOR CONFIRMING ACCURACY AND ADEQUACY OF LANGUAGE TRANSLATIONS AND TRANSACTIONS OR OTHER OUTPUT OF THE LSP OR SERVICES.
13. Limitation of Liability.
13.1. Limitation of Liability of Parakeet. EXCEPT FOR A) ITS INDEMNIFICATION OBLIGATIONS IN ACCORDANCE WITH AGREEMENT, B) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT AND C) WHEN THERE HAS BEEN A FINDING OF GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT IN THE PERFORMANCE OF THIS AGREEMENT BY IT (HEREINAFTER “PARAKEET LIMITATION EXCEPTIONS”), IN NO EVENT SHALL PARAKEET, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, CONSULTANTS, AND LICENSORS BE LIABLE TO ANY PERSON FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING FROM:
13.1.1. ANY FAULT IN DELIVERY, DELAY, OMISSION, SUSPENSION, INTERRUPTION, INACCURACY OR TERMINATION, OR ANY OTHER CAUSE, IN CONNECTION WITH THE FURNISHING, PERFORMANCE, OPERATION, MAINTENANCE, USE OF OR INABILITY TO USE ALL OR ANY PART OF THE SERVICES, PARAKEET DATA, LSPS, TRANSACTIONS, OR OTHER INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES, OR ANY FACILITIES USED TO SUPPORT THE SERVICES AND ANY AND ALL COMMUNICATIONS NETWORKS, COMPUTERS, SOFTWARE, HARDWARE, AND FIRMWARE RELATING THERETO; OR
13.1.2. ANY FAILURE OR MALFUNCTION, FAULT IN DELIVERY, DELAY, OMISSION, SUSPENSION, INACCURACY, INTERRUPTION OR TERMINATION, OR ANY OTHER CAUSE, OF ANY SYSTEM OR SERVICES OF PARAKEET, INCLUDING, BUT NOT LIMITED TO, THIRD PARTY SERVICE PROVIDERS, VENDORS, INFRASTRUCTURE AND NETWORK PROVIDERS.
13.2. THE LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY WHETHER A CLAIM ARISES IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, CONTRIBUTION OR OTHERWISE AND WHETHER THE CLAIM IS BROUGHT DIRECTLY OR AS A THIRD-PARTY CLAIM.
13.3. NOTWITHSTANDING THE ABOVE, EXCEPT FOR PARAKEET LIMITATION EXCEPTIONS, PARAKEET’S TOTAL COMBINED AGGREGATE OBLIGATIONS OR LIABILITY TO SUBSCRIBER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE FEES FOR THE TRANSACTIONS AND THE MONTHLY FEES CHARGED SUBSCRIBER FOR THE ONE MONTH PRIOR TO THE DATE OF THE TRANSACTION, ACTION OR EVENT GIVING RISE TO THE CLAIM FOR ALL LOSSES OR DAMAGES SUFFERED FROM ALL CAUSES.
13.4. Limitation of Liability of Subscriber and End User. EXCEPT FOR A) ANY INDEMNIFICATION OBLIGATIONS IN ACCORDANCE WITH AGREEMENT, B) A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, C) NEGLIGENCE IN PERFORMING, MANAGING OR CONTROL QUALITY OF LANGUAGE TRANSLATIONS, AND D) ITS PAYMENT OBLIGATION TO PARAKEET E) WHEN THERE HAS BEEN A FINDING OF GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT REGARDING PERFORMANCE UNDER THIS AGREEMENT (COLLECTIVELY, “SUBSCRIBER LIMITATION EXCEPTION”):
13.4.1. IN NO EVENT SHALL SUBSCRIBER (INCLUDING ITS SUBSIDIARIES AND AFFILIATES), NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, OR CONSULTANTS BE LIABLE TO PARAKEET FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; AND
13.4.2. THE MAXIMUM LIABILITY OF SUBSCRIBER (INCLUDING ITS SUBSIDIARIES AND AFFILIATES AND ANY CONTRACTORS PROVIDING SERVICES TO THEM), OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, OR CONSULTANTS, FOR DIRECT LOSS OR DAMAGE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY), STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH USE OF SERVICES OR TRANSACTIONS SHALL BE THE TRANSACTION AND MONTHLY FEES PAID BY SUBSCRIBER FOR THE ONE MONTH PRIOR TO THE DATE OF THE ACTION OR EVENT GIVING RISE TO THE CLAIM FOR ALL LOSSES SUFFERED FROM ALL CAUSES.
14. Nonbinding Mediation and Binding Arbitration.
14.1. Parakeet will make every reasonable effort to informally resolve any complaints, disputes or disagreements that Subscriber may have with Parakeet. If those efforts fail, Subscriber agrees that any complaint, dispute or disagreement Subscriber may have against Parakeet, and any claim that Parakeet may have against Subscriber, arising out of, relating to, or connected in any way with this Agreement, any Transactions or Subscriber’s use of or interaction with the Services and any related services or Content will be resolved, first, by non-binding mediation to take place within sixty (60) days of the written notice of such dispute and, second, if the parties are unable to resolve such dispute by non-binding mediation in such sixty (60) day period, then by binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $5,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). You further agree to the following:
14.2. The Arbitration shall be conducted before a single arbitrator selected by mutual agreement between Subscriber and Parakeet or, if the parties cannot agree, in accordance with the Applicable Rules (the “Arbitrator”).
14.3. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of this Agreement and/or these arbitration provisions in this Section including but not limited to any claim that all or any part of this Agreement is void or voidable.
14.4. The Arbitration shall be conducted in the English language and held either: (i) in Manhattan, New York, U.S.A.; or (ii) at such other location as may be mutually agreed upon by Subscriber and Parakeet; or (iii) at Subscriber’s election, if the only claims in the arbitration are asserted by Subscriber and are for less than $5,000 in aggregate, by telephone, video conference or by written submission.
14.5. The Arbitrator (I) allow discovery between the parties as provided in the federal rules of civil procedure, (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief.
14.6. The Arbitration can resolve only Subscriber’s and/or Parakeet’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated.
14.7. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The prevailing party shall be entitled to recover its reasonable attorneys’ fees and its share of the costs of the arbitration, as the Arbitrator determines. In no event will the Arbitrator have the authority to award punitive damages or any other damages expressly limited by this Agreement.
14.8. Notwithstanding anything to the contrary contained in this Section, a party may seek equitable relief by court action before or after instituting arbitration, including, without limitation, seeking and obtaining temporary restraining orders, injunctions or other provisional, ancillary or equitable remedies, and the institution and maintenance of any such action shall not constitute a waiver of the right to arbitrate any controversy or claim.
14.9. Notwithstanding the foregoing, Subscriber and Parakeet adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure with respect to any final Award in the Arbitration.
14.10. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT SUBSCRIBER AND PARAKEET ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPOSED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
15.1. The Subscriber shall indemnify, defend and hold harmless Parakeet, its subsidiaries, affiliates and its and their respective officers, directors, members, employees, partners, agents and representatives from and against any and all losses, liabilities, judgments, suits, actions, proceedings, claims, damages, costs and expenses (including reasonable attorney’s fees) resulting from, arising out of, or in connection with any third party claims resulting from or arising out of any breach of this Agreement by Subscriber or its End Users.
15.2. Parakeet shall indemnify Subscriber, its subsidiaries and affiliates and its and their respective officers, directors, members, employees, partners, agents and representatives from and against any and all losses, liabilities, judgments, suits, actions, proceedings, claims, damages, costs and expenses (including reasonable attorney’s fees) resulting from, arising out of, or in connection with, any third party claim, demand, or cause of action that Parakeet’s intellectual property (or any portion thereof) infringes or otherwise violates any intellectual property of such third party.
15.3. A party seeking indemnification under this Section (an “Indemnified Party”) with respect to any third party claim shall provide the party from whom indemnification is sought (the “Indemnifying Party”) with prompt notice of any such third party claim; provided that the Indemnifying Party’s indemnification obligations shall not be affected by any failure to provide such notice except to the extent that such failure materially prejudices the ability of the Indemnifying Party to defend such claim. The Indemnified Party shall permit the Indemnifying Party to, and the Indemnifying Party shall promptly, assume and control the defense of such claim, with counsel chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnified Party may participate in such defense at its own expense; provided, further, that, if the Indemnifying Party does not promptly assume such defense, the party seeking indemnification may assume and control such defense (which control shall include the right to compromise any claim or enter into any settlement agreement, in the sole discretion of the Indemnified Party) and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all costs and expenses arising therefrom or related thereto (including, without limitation, reasonable attorneys’ fees, amounts payable under any compromise or settlement agreement, fines, penalties, judgments and the like). The Indemnified Party shall reasonably cooperate at the Indemnifying Party’s request and expense with the defense of such claim. Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party may not compromise any claim or enter into any settlement agreement that apportions any liability or fault to or gives rise to any cost to or obligation for, the Indemnified Party without the Indemnified Party’s prior written consent.
16. Term, Termination and Summary Denial of Access to the Services.
16.1. This Agreement will commence as of the date that the both Subscriber and Parakeet have executed this Agreement, and subject to the provisions of this Agreement will continue unless and until terminated by: (i) one party upon thirty (30) calendar days prior written notice to the other party; or (ii) immediately upon written notice by one party to the other party upon a breach of this Agreement; provided that this Agreement shall remain in effect with respect to any Transactions commenced prior to such termination until such Transactions are completed. Notwithstanding the foregoing, the provisions of this Agreement shall survive the termination of this Agreement: General, Payment of Fees, Representations, Warranties and Covenants, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, Indemnification, and Confidentiality.
16.2. Upon termination of this Agreement, all outstanding fees for the Services rendered shall become due and payable within five (5) days from the date thereof.
17.1. Except as otherwise provided in this Agreement, all notices delivered with respect to this Agreement shall be in writing and either hand delivered or transmitted via the United States Postal Service, national overnight carrier, or via email to the Subscriber’s registered Account Owner’s email account. Services of any such notice shall be deemed to have been made upon the earlier of actual receipt for overnight carriers or email, or in the case of first class mail on the third business day after mailing.
18. No Third-Party Beneficiary.
18.1. Nothing in this Agreement shall be considered or construed as conferring any right or benefit on a person not a party to this Agreement or imposing any obligations on Parakeet to persons not a party to this Agreement.
19. Force Majeure.
19.1. Neither party shall be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of Services resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, acts of a public enemy, strikes or industrial disputes of any nature, power or telecommunications failure, sabotage, pestilence, terrorism, lightning or electromagnetic disturbances, earthquake, flood, fire or other casualty or other catastrophes, or any other cause beyond its reasonable control.
20.1. No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.
21.1. This Agreement may not be assigned by Subscriber without Parakeet’s express prior written. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective legal successors and permitted assigns.
22. Venue and Governing Law.
22.1. Except as set forth below, each party hereby consents to the jurisdiction of any federal or state court located in New York, New York with respect to any action arising from this Agreement and acknowledges that this Agreement shall be governed and construed in all respects by the laws of the State of New York without giving effect to principles of conflict of law. No action arising out of any claimed breach of this Agreement or Transactions under this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
23. Whole Agreement.
23.1. The Agreement, Exhibits if any, as amended from time to time, shall constitute the entire scope of obligations between Subscriber and Parakeet respecting the Services described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter.
24. No Partnership.
24.1. Subscriber and Parakeet acknowledge that this Agreement is not intended to create, nor shall it be interpreted to create, a joint venture, partnership, or any similar relationship between Subscriber and Parakeet and, except as otherwise provided in this Agreement, neither party shall be deemed to be the agent of the other party.
25.1. The headings in this Agreement are intended for convenience of reference, are not substantive and shall not be used to interpret or construe any of the provisions contained in this Agreement. When used in this Agreement, the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
26.1. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
27. Government Regulation & Government Usage.
27.1. Subscriber acknowledges that the Services may be subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Subscriber may not export or re-export the Services except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. Subscriber shall not and shall not allow any third party to remove or export from the United States or allow the export or re-export of any portion of the Services or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Subscriber agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Services is further restricted from being used for: (i) terrorist activity, or (ii) the design or development of nuclear, chemical, or biological weapons or missile technology, without the prior permission of the U.S. government. The Services and any Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Services and Documentation by the U.S. government shall be governed solely by the terms of this Agreement.
Parakeet Systems Inc.
Effective as of March 16, 2018