|Account||The primary means for accessing and using the Pencil services, subject to payment of a fee designated in the selected plan;|
|Activity||Appointments, tasks, events and actions (such as call, meeting, lunch or a custom type) on a calendar that can be associated with a deal, a person or an organisation.|
|Authorisation||The set of rights and privileges on the web site assigned to a user by a supplier;|
|Supplier||A natural or legal person or company who has accepted these terms with the provider;|
|Supplier data||A natural or legal person or company who has accepted these terms with the provider;|
|Content||Any data and information available through Pencil services or contained within the structure of the system, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;|
|Fee||Regular payment for using the activated account;|
|Files||Documents of any kind (images, spreadsheets, text files, etc.) That are inserted to the system by the supplier, and usually associated with a particular deal, person or organization;|
|Free trial||Temporary access for the purposes of trying out the web site and Pencil services in accordance with any selected plan without paying a fee;|
|Guidelines||Additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the platform or otherwise made available on or through the Pencil services;|
|Customers||Legal persons (such as companies) and other entities with which that supplier is making deals;|
|Pencil materials||The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Pencil services;|
|Pencil services||The web site, system, content, platform and all content, services and/or products available on or through the platform;|
|Plan||Various criteria related to the use and functionality of the Pencil services and on which the fee is based;|
|Platform||The Pencil trade account management application;|
|Products||The goods or services that a supplier is offering to persons and organizations;|
|Reseller||Third party entity that (i) purchases Pencil services from provider and resells such Pencil services to suppliers, (ii) bills through Pencil (iii) provides such suppliers with customer service;|
|Special terms||Any particulars, specifications and conditions by which the parties have agreed to deviate from these terms;|
|System||The integrated cloud computing solution for providing the Pencil services, including applications, software, hardware, data bases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;|
|User||A natural person granted with the authorisation to use the account on behalf of a supplier;|
|Website||The compilation of all web documents made available via www.pencilpay.com or sub domains or domains with identical names under other top domains and owned by provider.|
2) AUTHORITY TO ENTER INTO THESE TERMS WITH PROVIDER
The use of the Pencil services is subject to acceptance of these terms. To accept these terms for itself or on behalf of a supplier, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The terms are accepted as soon as one of the following occurs first:
A. The person has received the confirmation of the creation of the account and necessary credentials from provider in order to log in to his/her/its account; or
B. For those Pencil services and parts of the web site the use of which is not dependent on creating an account, upon the moment of gaining access to such services.
C. You may not, without provider’s prior written consent, access the Pencil services
i. for production purposes,
ii. if you are a competitor of Pencil,
iii. to monitor the availability, performance or functionality of the Pencil services or
iv. for other bench-marking or competitive purposes.
Once accepted, these terms remain effective until terminated as provided for herein.
3) MODIFICATIONS TO TERMS
Provider reserves the right, at its sole discretion, to change, modify, add, or remove portions of the terms at any time by posting such changes on or through the platform or the Pencil services. Please check these terms periodically for changes. Your continued use of the Pencil services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended terms will automatically be effective upon the earlier of:
i. your continued use of the Pencil services, or
ii. 30 days from posting of such modified terms on or through the platform.
iii. Notwithstanding the foregoing, the resolution of any dispute that arises between you and provider will be governed by the terms in effect at the time such dispute arose.
4) OUR RESPONSIBILITIES
Provision of Pencil services. Provider will:
A. make the Pencil services, content and supplier data available to a supplier pursuant to these terms;
B. provide applicable standard support for the Pencil services to supplier at no additional charge, and/or upgraded support (for an additional charge, if applicable);
C. use commercially reasonable efforts to make the Pencil services available 24 hours a day, 7 days a week, except for:
i. planned downtime (of which provider shall give advance electronic notice as provided in the guidelines), and
ii. any unavailability caused by circumstances beyond provider’s reasonable control, including, for example, an act of god, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, internet service provider failure or delay, or denial of service attack.
5) PROTECTION OF SUPPLIER DATA
A. Provider will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of supplier data, as described in the guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of supplier data by provider personnel except:
i. to provide the Pencil services and prevent or address service or technical problems,
ii. as compelled by law in accordance with section compelled disclosure below, or
iii. as a supplier or user expressly permit in writing.
B. SendGrid - Service provider for the email. (privacy shield certified).
D. Twilio - Service provider for the SMS feature. (privacy shield certified).
6) SUPPLIERS ESTABLISHING A PENCIL ACCOUNT
A. Certain features, functions, parts or elements of the Pencil services can be used or accessed only by holders of an account. The person who wishes to create an account must:
i. Complete the sign-up form on the web site or alternative process provided by a reseller if access to the Pencil services is purchased from a reseller; and
ii. Accept these terms by clicking “sign up” or other similar button.
B. Each supplier may have only one account. If several persons need to use an account on behalf of supplier, supplier must designate such persons as users, each such user shall be subject to the restrictions set forth in these terms.
C. If the supplier has designated users and granted them authorisation, such users will be deemed to be authorized to act on behalf of supplier when using the account. Provider is not responsible for and shall have no liability for verifying the validity of authorisation of any user. However, provider may, in its discretion, request additional information or proof of the person’s credentials. If provider is not certain if a user has been granted authorisation, provider may, in its sole discretion, prevent such user from accessing the Pencil services.
D. A user may be associated with multiple suppliers and accounts. Deleting a user from one account will not remove the user from the platform if he/she is connected to multiple accounts.The supplier and any user associated with an account must provide provider with true, accurate, current, and complete information about the supplier, users or account and keep it up to date.
E. Credentials - Provider shall provide supplier with a username and password (“login credentials”) to be used to log in to its account unless the supplier uses the single sign-on feature or another service to log in. These login credentials must not be used by multiple persons. If supplier has designated several users, each user will be provided with separate login credentials. Supplier and each user are responsible for keeping confidential all login credentials associated with an account. Supplier must promptly notify provider:
i. Of any disclosure, loss or unauthorized use of any login credentials;
ii. Of a user’s departure from the supplier’s organization;
iii. Of a change in a user’s role in the supplier’s organization;
iv. Of any termination of a user’s right for any reason.
F. Termination - Supplier may terminate these terms at any time as provided in section 17. Provider shall permanently delete the account within six months of the effective date of the termination.
G. Fees - The use of an account is subject to a fee. Upon sign-up for an account, the supplier must select a plan. Different rates apply to different plans. The applicable fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All fees are non-refundable, i.e. There are no refunds or credits for periods where the supplier did not use an activated account, used it only partially, or deactivated the account or terminated these terms during an ongoing payment interval. If, after signing up, supplier elects to upgrade to a more expensive plan, the unused portion of any prepaid fees shall be applied to the fee of the more expensive plan.
H. Tax - All fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Supplier is solely responsible for the payment of such taxes, levies or duties.
I. Changing Plans - Any supplier has the right to upgrade a current plan at any time by selecting a new plan among the collection of plans determined by the provider. In such an event, the supplier’s credit card on file with the provider will automatically be charged with a fee for the next payment interval with the rate stipulated in the new plan.
J. Free Trial - A new supplier may be entitled to a free trial, unless the supplier has applied for the account as a result of an ongoing marketing campaign organized by the provider in co-operation with its partners. The supplier is not required to provide any credit card information during the period of free trial. If the period of free trial has expired, the account will be automatically deactivated. In order to prevent deactivation or to reactivate the account, the supplier is required to select a suitable plan and pay the first fee. In addition to the current collection of plans, provider may offer special discounts and motivation schemes (for example finder’s fees, etc.).
a. The Supplier may terminate these terms at any time as provided in section 17.
b. The Provider shall permanently delete the account within six months of the effective date of the termination.
c. Fees - The use of an account is subject to a fee. Upon sign-up for an account, the supplier must select a plan. Different rates apply to different plans. The applicable fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All fees are non-refundable, i.e. There are no refunds or credits for periods where the supplier did not use an activated account, used it only partially, or deactivated the account or terminated these terms during an ongoing payment interval. If, after signing up, supplier elects to upgrade to a more expensive plan, the unused portion of any prepaid fees shall be applied to the fee of the more expensive plan.
d. Tax - All fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Supplier is solely responsible for the payment of such taxes, levies or duties.
e. Changing Plans - Any supplier has the right to upgrade a current plan at any time by selecting a new plan among the collection of plans determined by the provider. In such an event, the supplier’s credit card on file with the provider will automatically be charged with a fee for the next payment interval with the rate stipulated in the new plan.
f. Free Trial - A new supplier may be entitled to a free trial, unless the supplier has applied for the account as a result of an ongoing marketing campaign organized by the provider in co-operation with its partners. The supplier will be required to provide credit card information during the period of free trial. If the period of free trial has expired, the account will be automatically deactivated. In order to prevent deactivation or to reactivate the account, the supplier is required to select a suitable plan and pay the first fee. In addition to the current collection of plans, provider may offer special discounts and motivation schemes (for example finder’s fees, etc.).
The following provisions are applicable only if you purchase access to the Pencil services directly from provider. If you purchase access to the Pencil services through a reseller, the payment terms are set forth in the agreement with your reseller.
a. Payment Card Authorization - Provider may seek pre-authorization of a payment card prior to your purchase of Pencil services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment card account to pay any amounts described herein, and authorize provider to charge all sums described in these terms to such card account. You agree to provide provider updated information regarding your payment card account upon provider’s request and any time the information earlier provided is no longer valid.
b. Direct Debit Payment - In some markets provider may, if supplier elects, request that supplier complete a direct debit mandate to enable direct debit payments. In such cases provider shall comply with all applicable national rules and regulations related to direct debit payments.
c. The table below shows the fees, charges and volume discounts for payment processing through Pencil.
d. If the supplier reaches the threshold of the required tier within a calendar month, their new rate will apply to all transactions for that calendar month.
e. If you have been granted a volume discount in writing by PencilPay, the discount will be applied and rebated at the end of each calendar month.
f. The pricing table below is true and correct as of 10 May 2021 and all prices listed exclude GST.
|Payment Type||Per Transaction Fee||0-$50,000/m||$50,000-$200,000/m||$200,000+/m|
|Visa/MasterCard||$0.30||2.25%* ||2.00%* ||1.90%* |
|American Express||$0.30||2.50%* ||2.25%* ||2.15%* |
|Bank Debit or Direct Debit||$ 1.10||1.50%*||0.90%*||0.80%*|
- Base fees are for clients processing over $5,000 in $AUD transaction value per calendar month.
- Base fees are for clients who receive collection of funds within 14 days of their due date.
- Extra fees and charges may apply for clients processing under $5,000 in $AUD transaction value per calendar month.
- Extra fees and charges may apply for clients processing payments that are more than 14 days overdue.
a. In the event that a customer disputes a charge and requests a chargeback from their financial institution, you are required to attempt to resolve this directly with the customer.
b. In the event that the dispute is resolved, your customer must contact their financial institution and cancel their chargeback request.
c. In the event that no resolution is forthcoming, PencilPay will debit your nominated account for the total chargeback amount in question plus a $38.50 chargeback fee.
10) SUPPLIER DATA
A. Uploading Supplier Data To Platform - If the supplier uploads supplier data to the platform, such supplier data and any processing of such supplier data must be in compliance with these terms and applicable law. All rights, title and interest in and to the supplier data belong to the supplier or third persons (including users, persons and organizations) whether posted and/or uploaded by you or made available on or through the Pencil services by provider. By uploading supplier data to the platform, supplier authorizes provider to process the supplier data. The supplier is responsible for ensuring that:
i. The supplier and any of the users associated with the account do not create, transmit, display or make otherwise available any supplier data that violates the terms of these terms, the rights of provider, other suppliers or users, persons or organizations or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
ii. The supplier and all of the users associated with the account have the necessary rights to use the supplier data, including to insert it into the platform and process it by means of the account.
B. No Guarantee Of Accuracy - Provider does not guarantee any accuracy with respect to any information contained in any supplier data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Pencil services. You understand that all information contained in supplier data is the sole responsibility of the person from whom such supplier data originated. This means that supplier, and not provider, is entirely responsible for all supplier data that is uploaded, posted, transmitted, or otherwise made available through the Pencil services, as well as for any actions taken by the providers or other suppliers or users as a result of such supplier data.
C. Unlawful Supplier Data - Provider is not obliged to pre-screen, monitor or filter any supplier data or acts of its processing by the supplier in order to discover any unlawful nature therein. However, if such unlawful supplier data or the action of its unlawful processing is discovered or brought to the attention of provider or if there is reason to believe that certain supplier data is unlawful, provider has the right to:
i. Notify the supplier of such unlawful supplier data;
ii. Deny its publication on the web site or its insertion to the system;
iii. Demand that the supplier bring the unlawful supplier data into compliance with these terms and applicable law;
iv. Temporarily or permanently remove the unlawful supplier data from the web site or account, restrict access to it or delete it.
v. If provider is presented convincing evidence that the supplier data is not unlawful, provider may, at its sole discretion, restore such supplier data, which was removed from the web site or account or access to which was restricted.
vi. In addition, in the event provider believes in its sole discretion supplier data violates applicable laws, rules or regulations or these terms, provider may (but has no obligation), to remove such supplier data at any time with or without notice.
D. Compelled Disclosure - Provider may disclose a supplier’s confidential information to the extent compelled by law to do so. In such instance, provider will use commercially reasonable efforts to provide supplier with prior notice of the compelled disclosure (to the extent legally permitted) and supplier shall provide reasonable assistance, at its cost, if supplier wishes to contest the disclosure. If provider is compelled by law to disclose supplier’s confidential information as part of a civil proceeding to which provider is a party, and supplier is not contesting the disclosure, supplier will reimburse provider for its reasonable cost of compiling and providing secure access to that confidential information.
A. Use of the Pencil services - Subject to these terms, and the payment of the applicable service fee, provider grants supplier and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the Pencil services to:
i. Collect, store and organize supplier data, such as add new persons and organizations, create pipelines and add stages into these pipelines, generate reports based on supplier data, add deals into stages and monitor their evolvement through the next stages, add products to be offered for sale to persons and organizations; add new users and grant them authorisations, assign activities to a particular user;
ii. Modify and delete supplier data;
iii. Customize the standard features of the Pencil services;
iv. Receive reasonable help and guidance and from provider regarding the use of the Pencil services.
B. Technical Support - Provider shall provide reasonable technical support to supplier and its authorized user at the reasonable request of the supplier. Provider shall respond to enquiries of support from a supplier utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of suppliers and users who have accepted these terms but do not have an account may be less expedient, or may not occur at all.
C. Notwithstanding the foregoing, if you purchased access to the Pencil services from a reseller, then first-line technical support will be provided by the reseller and not by the provider.
D. Modifications To Service – Provider reserves the right to modify the Pencil services or any part or element thereof from time to time without prior notice, including, without limitation:
i. Rebranding the Pencil services at its sole discretion;
ii. Ceasing providing or discontinuing the development any particular Pencil service or part or element of the platform temporarily or permanently;
iii. Taking such action as is necessary to preserve provider’s rights upon any use of the Pencil services that may be reasonably interpreted as violation of provider’s intellectual property rights, distribution of internet viruses, worms, trojan horses, malware, and other destructive activities or illegal activity.
E. As applicable, supplier may be notified of such modifications when logging in to the account. Modifications, including change in applicable rates for the Pencil services, will become effective thirty (30) days before the effective date of such modification.
F. If the supplier does not accept the modification, the supplier shall notify provider or reseller (if supplier purchased access to the Pencil services from a reseller) before the effective date of the modification, and these terms will terminate on the effective date of the modification. The supplier’s continued use of the Pencil services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Provider shall not be liable to the supplier or to any third person for any modification, suspension or discontinuance of the Pencil services, or any part or element thereof.
12) DATA PROCESSING CONTRACT
The supplier hereby instructs the provider to process the data as described in these terms.
A. Subject Matter and Nature Of Processing - The provider provides the platform where the supplier, as the data controller, can collect, store and organize the personal data of data subjects determined by the supplier. The platform has been designed to work as a trade account management tool but, to the extent not regulated by these terms, the supplier decides how they use the platform.
B. Duration - The provider will process data on behalf of the supplier until the termination of the Pencil services in accordance with these terms. Upon termination, provider will store the supplier’s data for a period of three years, should the supplier wish to reopen the account to resume the use of the Pencil services or to export supplier data, unless instructed otherwise by the supplier. After that, the contents of the account may be recoverable from provider’s backups.
C. Parties’ Rights and Obligations - The supplier’s rights and obligations regarding supplier data are provided in sections 4 through 10 of these terms. The provider ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
A. Prohibited Activities - Supplier and its authorized users may use the Pencil services and any part or element thereof only in the scope, with the means and for purposes as identified in these terms and applicable law. By way of example, neither the supplier nor any user may:
i. Use the Pencil services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
ii. Copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Pencil services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that the provider is not permitted by that applicable law to exclude or limit the foregoing rights;
iii. Use the Pencil services or any part or element thereof unless it has agreed to these terms.
B. Certain uses require provider consent. The supplier or any user may not, without provider’s prior express written consent (e-mail, fax, skype, etc.):
i. Sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant access or make the Pencil services available in whole or in part to any third persons, unless such third person is another authorized user of the same supplier;
ii. Use the Pencil services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
iii. Use the Pencil services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by provider;
15) INTELLECTUAL PROPERTY RIGHTS
A. Pencil’s intellectual property rights in the Pencil services - The Pencil services, Pencil materials, Pencil trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by provider and its third party vendors and hosting partners. Pencil materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Provider, its affiliates and licensors retains all right, title and interest in such Pencil services, Pencil materials, Pencil trade names and trademarks, and any parts or elements. Your use of the Pencil services and Pencil materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the Pencil materials is strictly prohibited unless you have received the express prior written permission from provider or the otherwise applicable rights holder. Provider reserves all rights to the Pencil services, Pencil materials and Pencil trade names and trademarks not expressly granted in the terms.
B. Content owned by Pencil - Subject to these terms and the payment of the applicable service fee, provider grants supplier and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the platform or the Pencil services. You shall not copy, distribute or publish any content or any information obtained or derived therefrom except as permitted on or through the Pencil services or as otherwise permitted by applicable law.
C. Supplier data - Provider may use supplier data in an aggregated or anonymized format for research, educational, credit reporting and other similar purposes. Provider may not otherwise use or display supplier data without supplier’s written consent. Provider respects your right to exclusive ownership of your supplier data. Unless specifically permitted by you, your use of the Pencil services does not grant provider the license to use, reproduce, adapt, modify, publish or distribute the supplier data created by you or stored in your account for provider’s commercial, marketing or any similar purpose. Supplier expressly grants provider the right to use and analyze aggregate system activity data associated with use of the Pencil services by supplier and its users for the purposes of optimizing, improving or enhancing the way the Pencil services operate, and to create new features and functionality in connection with the Pencil services in the sole discretion of provider.
D. Supplier is solely responsible for its own supplier data and the consequences of posting or publishing them on or through the Pencil service. In connection with supplier data, supplier affirms, represents, and warrants that:
i. supplier either owns its supplier data or has the necessary licenses, rights, consents, and permissions to use and authorize the providers to display or otherwise use the supplier data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your supplier data in a manner consistent with the intended features of the Pencil services and these terms, and to grant the rights and license set forth in section 11.3, and
ii. supplier data, provider’s or any Pencil licensee’s use of such supplier data pursuant to these terms, and provider’s or any Pencil licensee’s exercise of the license rights set forth in section 11.3,
iii. do not and will not:
o infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
o violate any applicable law or regulation anywhere in the world; or
o require obtaining a license from or paying any fees and/or royalties by provider to any third party for the performance of any Pencil services supplier has chosen to be performed by provider or for the exercise of any rights granted in these terms, unless supplier and provider otherwise agree.
E. Feedback - If supplier or a user provides providers with any comments, bug reports, feedback, or modifications for the Pencil services (“feedback”), provider shall have the right to use such feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Pencil services. Supplier or user (as applicable) hereby grants provider a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your feedback for any purpose. Provider shall have the right to modify or remove any feedback provided in the public areas of the web site if the provider deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
16) THIRD-PARTY SITES, PRODUCTS AND SERVICES
The Pencil services may include links to other websites or services (“linked sites”) solely as a convenience to suppliers. Unless otherwise specifically and explicitly indicated, provider does not endorse any such linked sites or the information, material, products, or services contained on or accessible through linked sites. Furthermore, provider makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. Access and use of linked sites, including the information, material, products, and services on linked sites or available through linked sites, is solely at your own risk.
Any content referred to as community provided is provided by third parties and not developed or maintained by Pencil. By using any community marked code or libraries in your software development, you acknowledge and agree that Pencil is not in any way responsible for the performance or damages caused by such community provided code or library.
17) DISCLAIMERS; NO WARRANTY
A. Unless otherwise expressly stated by provider, the Pencil services, Pencil material, and any content, services, or features made available in conjunction with or through the Pencil services are provided “as is” and “as available” without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, provider and its affiliates disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement of proprietary rights, correctness, accuracy, and reliability.
B. Unless otherwise expressly stated by provider, provider and its affiliates do not warrant that the Pencil services and any content, supplier data services, or features made available in conjunction with or through the Pencil services will be uninterrupted or error-free, that defects will be corrected, or that the Pencil services and any content, supplier data, services, or features made available in conjunction with or through the Pencil services or the server that makes them available are free of viruses or other harmful components.
C. Unless otherwise expressly stated by provider, provider and its affiliates do not warrant or make any representations regarding the use or the results of the use of the platform, the Pencil services, Pencil material or any linked sites, in terms of correctness, accuracy, reliability, or otherwise.
D. The laws of certain countries and states do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
You agree to defend, indemnify and hold harmless provider and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Pencil services, Pencil materials, representations made to the provider, its affiliates and/or third parties, violation of these terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Provider reserves the right, at its own expense, to assume the exclusive defence and control of any matter for which you are required to indemnify provider, and you agree to cooperate with such defence of these claims.
19) LIMITATION OF LIABILITY
A. No Liability - provider shall not be liable to the supplier or user for any consequences resulting from:
i. Any modifications in these terms, calculation and rates of fees, the Pencil services, Pencil material, or any part or element thereof (including but not limited to account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the Pencil services or Pencil material;
ii. Deletion of, corruption of, or failure to store any supplier data;
iii. Use of supplier data by the supplier or any of the users associated with the account;
iv. Upgrading or downgrading the current plan;
v. Any disclosure, loss or unauthorized use of the login credentials of supplier or any authorized user due to supplier’s failure to keep them confidential;
vi. The supplier’s use of the account or the Pencil services by means of browsers other than those accepted or supported by the provider;
vii. The application of any remedies against the supplier or authorized users by the provider, for example if the supplier or user has committed a crime or conducted a breach of applicable law by using the Pencil services or any part or element thereof
viii. The differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the Pencil services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
ix. The provider’s application of the remedies described in these terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
B. In addition, provider and its affiliates shall not be liable to the supplier for any claim by any user, person, organization or third persons against the supplier arising out of the supplier’s failure to:
i. Provide provider with accurate information about the supplier, users or account;
ii. Notify provider of any reasons due to which a user does not have the right to use the account on behalf of the supplier;
iii. Provide any products which it has agreed to provide to such a person or organization (whether such failure arises as a result of provider’s negligence, breach of these terms or otherwise);
iv. Ensure the lawfulness of the supplier data;
v. Obtain the necessary rights to use the supplier data; or
vi. Abide by any of the restrictions described in these terms.
C. Limitation of liability - In no event shall the aggregate liability of Pencil and its affiliates arising out of or related to these terms exceed the total amount paid by supplier hereunder for the Pencil services giving rise to the liability in the six months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit supplier’s payment obligations under the “payment” section above.
D. Exclusion of Consequential and Related Damages - In no event will either party or its affiliates have any liability arising out of or related to these terms for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
20) TERMINATION OF THESE TERMS
A. For convenience - These terms may be terminated for convenience upon written notice to the other party as indicated in the “notice” section below:
B. By the Supplier by means agreed upon between the supplier and the provider;
C. By provider upon decision to end provision of the Pencil services and close the platform; or
D. Immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
E. For default - These terms may be terminated for default upon written notice to the other party as indicated in the “notice” section below:
F. By either party in case of breach of these terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
G. Immediately by either party if the other party breaches its obligations, as applicable under sections 13 [intellectual property rights] and 16 [indemnification] of these terms.
H. Effect of Termination. Upon termination of these terms,
i. Provider shall deactivate and permanently delete the account, within six months of the effective date of termination of these terms. If the supplier has specifically requested for an earlier deletion of the account, provider shall fulfill such request within 1 month of its receipt of such request
ii. Supplier must:
- Stop using and prevent the further usage of the Pencil services, including, without limitation, the platform;
- Pay any amounts owed to provider under these terms; and
- Discharge any liability incurred by the supplier before under these terms prior to their termination; and
I. The following provisions shall survive the termination of these terms: sections 1, 8, 10, 11, 12, 14, 15, 16, 18 and 19.
J. Remedies - If provider terminates these terms as a result of an uncured breach by a supplier or user, provider is entitled to use the same or similar remedies against any other persons who use the Pencil services in conflict with these terms. Notwithstanding the foregoing, provider may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the supplier or user may lose access or suffer a loss of certain features, functions, parts or elements of the Pencil services.
K. If provider has reasonable grounds to believe that the supplier’s or user’s use of the Pencil services, including the account may harm any third persons, provider has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
21) GOVERNING LAW AND JURISDICTION.
A. In the event of a dispute, controversy or claim arising out of or in relation to these terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations.
B. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below.
C. Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law.