This Customer Agreement is entered into by Pursuit IT Solutions cc. (“Pursuit Solutions”) and the person or entity agreeing to these terms (“You” or “Your”) and consists of (a) the terms contained herein, (b) the Additional Terms (as defined below), and (c) any Pursuit Solutions Order (as defined below) (collectively, this “Agreement”). This Agreement governs Your use of the Pursuit Solutions Service Offerings (as defined below).
BY EXECUTING A PURSUIT SOLUTIONS ORDER THAT REFERENCES THIS AGREEMENT, USING PURSUIT SOLUTIONS SERVICE OFFERINGS OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND (B) YOU AGREE, ON BEHALF OF SUCH ENTITY, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE A PURSUIT SOLUTIONS ORDER, CREATE AN ACCOUNT, USE THE PURSUIT SOLUTIONS SERVICE OFFERINGS OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT.
1. Definitions.
1.1. “Account Information” means information about You and Users that You provide to Pursuit Solutions in connection with the creation or administration of Your Account, and may include names, usernames, phone numbers, email addresses and billing information associated with Your Account.
1.2. “Additional Terms” means the following terms and policies: Pursuit Solutions Terms of Service, Privacy Policy, Service Level Agreement, Overage Billing Policy, Hardware Warranty Policy (to the extent applicable), Statement of Support, Third-Party Terms and any other terms and conditions disclosed to You in an Order, if applicable, through Your online account (“Account”) or in connection with accessing any Services, each of which are hereby incorporated by reference.
1.3. “Billing Cycle” means the interval of time from the end of one billing or invoice to the next billing or invoice and shall typically be one (1) month (for example, April 1st to April 30th); provided, the Billing Cycle for the first month of Your subscription will typically reflect fees due from the commencement of Your subscription until the last day of the following calendar month.
1.4. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
1.5. “Confidential Information” means all non-public information that one party or its affiliate (the “Discloser”) discloses to the other party (the “Recipient”) under this Agreement that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Notwithstanding the foregoing, Pursuit Solutions Confidential Information shall include (a) non-public information relating to the technology, customers, pricing, product plans, marketing activities, finances and other business affairs of Pursuit Solutions, its affiliates, suppliers, or licensors, (b) third-party information that Pursuit Solutions is obligated to keep confidential, and (c) the nature, content and existence of any discussions or negotiations between You and Pursuit Solutions or its affiliates. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) was known to the Recipient at the time of the Recipient’s receipt hereunder, (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act, or (iv) is independently developed by the Recipient.
1.6. “Content” means software, data, text, files, audio, video or images.
1.7. “Documentation” means Services support material, if any, made available by or on behalf of Pursuit Solutions, which may include product guides, manuals, specifications, and knowledgebase articles, each as may be updated from time to time.
1.8. “Fees” means (a) applicable fees for each Service as set forth in the Order (as may be adjusted pursuant to Section 4.8 upon subscription renewal) or, if an Order is not executed or the fees are not set forth in the Order, as set forth in the then-current Pursuit Solutions price list, (b) applicable fees for Hardware, if any, (c) applicable support fees, (d) transportation fees and related charges, (e) applicable Excess Usage fees pursuant to the Overage Billing Policy, and (f) all additional fees as mutually agreed upon by the parties.
1.9. “Hardware” means all computer and computer-related physical equipment, if any, provided directly or indirectly by Pursuit Solutions for use with the Services and/or Software. Hardware includes both Loaned Hardware and Purchased Hardware and excludes Third-Party Hardware.
1.10. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
1.11. “Pursuit Solutions Content” means Content made available by or on behalf of Pursuit Solutions in connection with the Services or on the Pursuit Solutions website at backitonline.com (the “Site”) to allow access and use of the Services, including without limitation APIs, Documentation, Creatives, software libraries, templates, and other related technology.
1.12. “Loaned Hardware” means Hardware provided to You by Pursuit Solutions that is not Purchased Hardware.
1.13. “Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
1.14. “Non-Supported Hardware” means Hardware () not set forth on the list of currently supported models of Hardware, or (b) Hardware that has been in service for more than six (6) years, notwithstanding its inclusion on the list of currently supported models of Hardware.
1.15. “Order” means (a) a written quote or other ordering document prepared by Pursuit Solutions (i) which is executed or otherwise agreed to by Your authorized representative, or (ii) against which You issue a purchase order; or (b) Your or a User’s registration for and/or purchase of the applicable Services via Your backup Dashboard. Your acceptance of a quote or ordering document or registration for and/or purchase of Services in accordance with any of the foregoing shall constitute Your execution of the Order for purposes of this Agreement.
1.16. “Policies” means the Privacy Policy, Website Terms of Use, Terms of Service, all restrictions described in the Pursuit Solutions Content, and any other policy or terms referenced in or incorporated into this Agreement.
1.17. “Purchased Hardware” means Hardware that is sold to You by Pursuit Solutions for which You have fully paid pursuant to an Order.
1.18. “Resource” means any measurable unit of Service level consumption by You and Your Users during a Billing Cycle, which may include, without limitation, storage, seats (i.e., the number of authorized users with access to the Service), and/or compute capacity, as applicable.
1.19. “Service” means each of the software as a service (SaaS) solutions made available by or on behalf of Pursuit Solutions, including those services described in the Terms of Service. Services do not include any Hardware, Third-Party Hardware, or Third-Party Product. Services are typically provided under one or more of the following models:
(a) “Commitment Plan”: in this model, you commit in advance to purchase a specific quantity of Resources as specified in Your Order(s) (the “Resource Entitlement”) for a defined term and pay in advance of use. You’ll be billed for the Resource Entitlement (irrespective of actual use) plus any use of the applicable Service in excess of the Resource Entitlement pursuant to Section 4.1; and
(b) “Consumption Plan”: this model is usage-based, where You’re billed in arrears for the applicable Resources actually used during the preceding month.
1.20. “Service Offerings” means the Services, Pursuit Solutions Content, Software, Pursuit Solutions Brand Features, Hardware, and any other product or service provided by or on behalf of Pursuit Solutions under this Agreement. Service Offerings do not include any Third-Party Product or Third-Party Hardware.
1.21. “Service Term” or “Order Term” means, with respect to each subscription for any Service, the Initial Service Term (as defined below) plus any Renewal Term(s) (as defined below).
1.21. “Software” means the software, if any, identified in an Order, as well as other software made available to You hereunder by or on behalf of Pursuit Solutions, including any applications, utility programs, and interfaces.
1.22. “Support” means the support services described in the Support Policies, which support services are provided by or on behalf of Pursuit Solutions for the applicable Services purchased by You.
1.23. “Support Policies” means the Service Level Agreement, Hardware Warranty Policy, Statement of Support and any other support policies for Services located at Pursuit Solutions.com/legal.
1.24. “Suspend” or “Suspension” means disabling or limiting access or use of the Service Offerings.
1.25. “Termination Date” means the effective date of termination provided in accordance with Section 7, in a written notice from one party to the other.
1.26. “Third-Party Hardware” means all computer and computer-related physical equipment, if any, that You provide or utilize other than Hardware, and includes all equipment that You purchase, lease, or otherwise obtain from a party other than Pursuit Solutions.
1.27. “Third-Party Product” means any Content made available to You by any third party on the Site or in conjunction with the Services, including any non-Pursuit Solutions-branded software and services licensed to You pursuant to Third-Party Terms. Pursuit Solutions reserves the right to suspend or terminate any Third-Party Product at any time. In the event of a conflict between the terms of this Agreement and any Third-Party Terms, the Third-Party Terms will prevail with respect to the Third-Party Product that is the subject matter of such terms.
1.28. “Trial Period” shall have the meaning ascribed to such term in the Terms of Service.
1.29. “Trial Service” shall have the meaning ascribed to such term in the Terms of Service.
1.30. “User” means any individual or entity authorized by You or on Your behalf to access or use Your Content or the Service Offerings under Your Account.
1.31. “Your Content” means all Content that You or any User (or Pursuit Solutions, when acting on Your instructions) transfers to Pursuit Solutions for processing, storage, or hosting by the Services in connection with Your Account. Your Content does not include Account Information.
2. Your Rights.
2.1. Training. Following Your purchase of a subscription to a Service, Pursuit Solutions will provide You initial technical training with respect to such Service via webinar or as otherwise agreed upon by Pursuit Solutions. After the initial technical training has been completed, any further training may be provided by Pursuit Solutions for a fee.
2.2. Support. Subject to the terms and conditions of this Agreement, Pursuit Solutions will provide Support to You for the Services in accordance with the then-current Support Policy.
3. Ordering And Payment Terms.
3.1. Purchases. By entering into an Order with Pursuit Solutions, You may purchase subscriptions for the right to access and use the Service Offerings, upgrades to existing subscriptions to the Service Offerings. Your purchase or upgrade of a subscription to the Service Offerings includes the right to access applicable Support during the Service Term. If You’ve been granted the right to use a Trial Service, You may cancel the Trial Service at any time before the end of the Trial Period. Unless You cancel before the end of the Trial Period, Your rights to use such Trial Service will automatically convert to a paid subscription to the same Service and You agree to pay the applicable Fees for such subscription.
(a) Commitment Subscription. If You purchase a subscription to a Service under a Commitment Plan (a “Commitment Subscription”), Fees due for each Billing Cycle shall be based on (i) the applicable monthly subscription fees for the applicable Service as set forth in Your Order, and (ii) Your and Your users’ use of such Service in excess of the Resource Entitlement (such as storage, seats, or compute capacity) You’re entitled to use pursuant to the terms of Your Commitment Subscription (“Excess Usage”). Such Excess Usage shall be invoiced utilizing the same method described in Section 4.1(b) below.
(b) Consumption Subscription. Your and/or Users’ use of a Service under a Consumption Plan (a “Consumption Subscription”) constitutes Your agreement to be invoiced for and pay for all use of such Service rounded up to the applicable pre-configured bundle of Resources (e.g., 10-user packs or 100 GB storage packs) or Resource allocation (e.g. cloud storage or compute capacity units), if any, at the pricing set forth in Your Order, or if not set forth therein, the standard usage-based pricing for that Service then in effect. Fees due for each Billing Cycle under a Consumption Subscription will be determined based on the average daily usage of the applicable Service by You and Users over the full Billing Cycle. Pursuit Solutions reserves the right to change the applicable usage-based pricing at any time, and any such change in pricing will not be effective until at least thirty (30) days following notice to You of such change.
4.0. Payment. Your right to access and use the Service Offerings is subject to Your timely payment of Fees. Pursuit Solutions will generally issue an invoice to You for Fees (a) in advance based on Your purchase of Services under a Commitment Plan, (b) in arrears based on (i) Your and Your Users’ use of Services under a Consumption Plan, and (ii) Excess Usage of Services pursuant to the Overage Billing Policy, and (c) at the time of Your Order for any other fees due hereunder including purchases of Hardware. Fees due for upgrades that occur during a Service Term will be prorated and typically included in the next Billing Cycle. Full payment is due within thirty (30) days of the invoice date. Payment shall be made by debit card, credit card, or ACH/direct debit and You shall maintain a valid electronic payment method on file with Pursuit Solutions at all times. You authorize Pursuit Solutions to charge Your payment method for all amounts due under this Agreement. If You purchase a multi-year subscription or a multi-year renewal for any Service, Your purchase is for the full value of all years of the subscription, even if the required payments are made in installments (e.g., monthly or annually). Except as otherwise provided in this Agreement or applicable law, Your obligation to pay all Fees is non-cancellable. The measurement by Pursuit Solutions of Your and Users’ (i) excess use of Services under a Commitment Plan, and (ii) actual use of Services under a Consumption Plan is final and will be the basis for the calculation of Fees. Usage-based Fees cannot always be invoiced right away and may be included in a later invoice. All Fees will be paid to Pursuit Solutions without setoff or counterclaim and are non-refundable.
4.1. Delinquent Payments. If any payment is more than thirty (30) days past due (including if payment is late due to a credit card expiration or chargeback or insufficient funds), Pursuit Solutions may, without limiting any remedies available to it hereunder and notwithstanding the opportunity to cure set forth in Section 7.3, (a) Suspend all or part of Your and Users’ use of the Service Offerings until payment is made current, or (b) immediately terminate this Agreement and/or any specific Order(s) for breach. Pursuit Solutions may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for any and all costs of collection incurred by Pursuit Solutions in collecting such late or past due payments, including reasonable attorney’s fees and litigation costs.
4.2. Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All Fees payable by You are exclusive of applicable Indirect Taxes, customs duties, and tariffs now or hereafter claimed or imposed by any governmental authority. Pursuit Solutions may charge and You will pay applicable Indirect Taxes, customs duties, and tariffs that Pursuit Solutions is legally obligated or authorized to collect from You. You will provide such information to Pursuit Solutions as reasonably required to determine whether Pursuit Solutions is obligated to collect Indirect Taxes from You. Pursuit Solutions will not collect, and You will not pay, any Indirect Tax for which You furnish us a properly completed exemption certificate or a direct payment permit certificate for which Pursuit Solutions may claim an available exemption from such Indirect Tax. All payments made by You to Pursuit Solutions under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, You will pay such additional amounts as are necessary so that the net amount received by Pursuit Solutions is equal to the amount then due and payable under this Agreement. Pursuit Solutions will provide You with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
4.3. Invoice Disputes & Refunds. You must submit any invoice disputes prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Pursuit Solutions, Pursuit Solutions will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Pursuit Solutions will apply the credit memo amount to the disputed invoice and You will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, You waive all claims relating to Fees unless claimed within sixty (60) days after charged (this does not affect any of Your rights with Your credit card issuer).
4.4. Overages. Services under a Commitment Plan are subject to usage limits specified in this Agreement, the Order, and the Overage Billing Policy. You acknowledge that use of the Services in excess of such usage limits may result in additional fees and agree to pay such fees in accordance with the Overage Billing Policy.
4.5. Initial Service Term and Renewals. Your subscription will be in effect for the initial service term (the “Initial Service Term”) specified in the Order or selected in Your Account, as applicable. For a Consumption Subscription, the Initial Service Term will be one (1) month unless otherwise specified. A Trial Service that converts to a paid subscription will have an Initial Service Term of one (1) year. Your subscription for Services is auto-renewing, and unless otherwise agreed upon by the parties in writing, Your purchase constitutes Your agreement to the auto-renewal of Your subscription with the same Resource Entitlement (as applicable) for successive Service Terms equal in length to the lesser of (a) one (1) year, or (b) the term of Your Initial Service Term (each term of a renewal, the “Renewal Term”). Each invoice for a Consumption Subscription constitutes an auto-renewal notice for such subscription. All Orders, including for renewals, are subject to acceptance by Pursuit Solutions in its discretion. You maintain the right to non-renew (terminate) Your subscription by providing email notice to Pursuit Solutions at cancel@Pursuit Solutions.com at least thirty (30) days prior to the end of the then-current Service Term. Subject to the foregoing, such termination shall take effect at the end of the then-current Service Term.
4.6. Price Adjustment Upon Renewal. Upon the renewal of Your subscription, we reserve the right to adjust the subscription fees by up to five percent (5%) of the then-applicable subscription rate. Any such adjustment will be communicated to You at least thirty (30) days prior to the renewal date. If You do not wish to accept the updated subscription fees, You may cancel Your subscription prior to the renewal.
5. Confidential Information.
5.1. Obligations. The Recipient shall maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The Recipient shall not use the Discloser’s Confidential Information for any purpose except as required or necessary for performance of this Agreement. Without limiting the foregoing, the Recipient will not disclose the Discloser’s Confidential Information except to affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to maintain its confidentiality on terms at least as restrictive as those contained herein. The Recipient will ensure that those people and entities use the Discloser’s Confidential Information only to exercise rights and fulfil obligations under this Agreement. The Recipient shall promptly return to the Discloser, or destroy, as the case may be, the Discloser’s Confidential Information following the termination or expiration of this Agreement or earlier upon written request of the Discloser.
5.2. Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the Recipient may also disclose the Discloser’s Confidential Information to the extent required by a government body, court of law, or other valid legal authority provided that the Recipient uses commercially reasonable efforts to: (a) promptly notify the Discloser in advance of such disclosure, and (b) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the Recipient determines that complying with (a) and (b) could (i) result in a violation of the legal order requiring disclosure, and/or (ii) obstruct a governmental investigation. As between the parties, You are responsible for responding to all third-party requests concerning Your and Users’ use of the Service Offerings.
6. Suspension.
6.1. Generally. Pursuit Solutions may Suspend Your or any User’s right to access or use all or any portion of the Service Offerings if Pursuit Solutions determines:
(a) Your or any User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact Pursuit Solutions systems, the Service Offerings, or the systems or Content of any other Pursuit Solutions customer, (iii) could subject Pursuit Solutions, its affiliates, or any third party to liability, or (iv) could be fraudulent;
(b) You or any User is in breach of this Agreement, or any User is in breach of the Terms of Service or other applicable terms;
(c) You fail to take necessary actions as described in the Terms of Service;
(d) It is required to Suspend to comply with applicable law;
(e) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(f) Pursuit Solutions wishes to Suspend a Trial Service pursuant to the Terms of Service.
Pursuit Solutions will eliminate any such Suspension once the circumstances giving rise to the Suspension have been resolved. At Your request, unless prohibited by applicable law, Pursuit Solutions will notify You of the basis for the Suspension as soon as is reasonably possible.
6.2. Effect of Suspension. If Pursuit Solutions Suspends Your or any User’s right to access or use all or any portion of the Service Offerings:
(a) You remain responsible for all Fees and charges You incur during the period of Suspension; and
(b) You will not be entitled to any service credits under the Service Level Agreement for any period of Suspension.
7. Term; Termination.
7.1. Term. This Agreement will become effective upon the earlier of (a) Your execution of an Order, (b) Your or any User’s use of any Service, or (c) when You indicate Your acceptance of this Agreement (during Account creation or otherwise) and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect until the date on which Your last active subscription to a Service expires. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.3.
7.2. Non-Renewal/Termination. Either party may non-renew (terminate) a subscription in accordance with the terms of Section 4.7.
7.3. Termination for Cause.
(a) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and, to the extent curable (other than a default in payment), such material breach remains uncured for a period of thirty (30) days from receipt of written notice by the other party.
(b) By Pursuit Solutions. Pursuit Solutions may also terminate this Agreement and/or an Order or any portion thereof immediately and without liability upon notice to You for cause (i) if Pursuit Solutions has the right to Suspend under Section 6.1(a-e), (ii) if the agreement between Pursuit Solutions and a third-party partner who provides software or other technology Pursuit Solutions uses to provide the Service Offerings expires, terminates, or requires Pursuit Solutions to modify the way it provides the software or other technology as part of the Services, or (iii) in order to comply with applicable law or requests of governmental entities.
7.4. Effect of Termination.
(a) Service Term. Upon expiration of a Service Term or termination of an Order or any portion thereof:
(i) all of Your and Users’ rights to the expired or terminated Service Offerings (the “Terminated Service”) terminate immediately, and You and Users will not be able to access Your Content in relation thereto except as expressly set forth in Section 7.4(c);
(ii) You remain responsible for all Fees and charges You have incurred for the Terminated Service through the date of expiration or termination of such Terminated Service and are responsible for any Fees and charges You incur during the post-termination period described in Section 7.4(c); and
(iii) You will immediately obtain possession of all Loaned Hardware provided in connection with the Terminated Service (whether provided to You or Users) and return such Loaned Hardware, along with all accessories, to Pursuit Solutions in the same condition as that in which it was provided (less reasonable wear and tear). In the event the Loaned Hardware is not immediately returned in the above-described condition, You agree to promptly pay to Pursuit Solutions the fair market value of the Loaned Hardware on the date of return.
(b) Agreement. Upon termination of this Agreement:
(i) You will immediately return or, if instructed by Pursuit Solutions, destroy all Pursuit Solutions Content in Your possession and cause all Users to do the same;
(ii) upon request, each party will return or destroy all Confidential Information of the other party; and
(iii) the following Sections shall survive termination: Sections 1, 3.1, 3.2, 3.5 (a-b), 3.5(f), 4.2-4.6, 5, 7.4, and 8 through 11.
(c) Post-Termination. Upon termination of this Agreement and/or termination or expiration of an Order or any portion thereof, You may retrieve Your Content pursuant to Section 7.3(d) of the Pursuit Solutions Terms of Service. Pursuit Solutions is not responsible for the availability or accessibility of Your Content following the expiration of the Retrieval Period (as defined in the Pursuit Solutions Terms of Service). You’re solely responsible for managing the download of Your Content, and Pursuit Solutions will have no liability if You fail to download such Content prior to termination or during the Retrieval Period.
For clarity, termination of this Agreement also results in the termination of all Orders. Further, termination or expiration of this Agreement or any Order(s) or portion thereof will not release You from the obligation to make payment of all amounts accrued or due and payable to Pursuit Solutions under the specific Order(s) and Terminated Services prior to the effective date of termination or expiration, and upon termination for any reason other than due to an uncured breach by Pursuit Solutions, all future amounts due under all terminated Orders and for Terminated Services shall be accelerated and become due and payable immediately (including amounts due for all years of a multi-year subscription or multi-year renewal), regardless of whether previously invoiced. For any authorized use of Terminated Services after expiration or termination thereof, the terms of this Agreement will apply, and You agree to pay the Fees applicable to such use except solely with respect to Your authorized access to download Your Content in connection with such Terminated Services.
8. Disclaimers.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS, HARDWARE, AND THIRD-PARTY PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER; (B) PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND QUIET ENJOYMENT, AND (II) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (C) PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT, DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES; (D) YOU AND USERS ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR CONTENT; AND (E) PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. IN NO EVENT WILL PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO YOUR CONTENT. YOU ACKNOWLEDGE THAT PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR THE USE OF HARDWARE NO LONGER SUPPORTED UNDER PURSUIT SOLUTIONS’S HARDWARE WARRANTY POLICY (“NON-WARRANTIED HARDWARE”), NON-SUPPORTED HARDWARE, OR THIRD-PARTY HARDWARE
9. Limitation Of Liability.
PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FURTHER, NEITHER PURSUIT SOLUTIONS NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR ANY USERS’ INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR AN ORDER, OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, (II) DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE OFFERINGS, (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA, OR (E) THE USE OF ANY NON-WARRANTIED HARDWARE, NON-SUPPORTED HARDWARE, OR THIRD-PARTY HARDWARE. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 10.2, THE AGGREGATE LIABILITY OF PURSUIT SOLUTIONS, ITS AFFILIATES, SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY PURSUIT SOLUTIONS UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 9 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Indemnification.
10.1. General. You will defend, indemnify, and hold harmless Pursuit Solutions, its affiliates, suppliers and licensors, and each of their respective employees, officers, directors, and representatives (collectively, the “Pursuit Solutions Indemnified Parties”) from and against any Losses arising out of or relating to any third-party claim concerning (a) Your or any Users’ access or use of the Service Offerings (including any activities under Your Account and use by Your employees and personnel), Non-Warrantied Hardware, Non-Supported Hardware, or Third-Party Hardware, (b) breach of this Agreement or violation of applicable law by You, Users, or Your Content, (c) Your and Users’ acts or omissions, or (d) a dispute between You and any User. You will reimburse Pursuit Solutions for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (c) above at its then-current rates.
10.2. Intellectual Property.
(a) Pursuit Solutions will defend You and Your employees, officers, and directors (collectively, “Your Indemnified Parties”) against any third-party claim to the extent based solely on an allegation that the Services or Pursuit Solutions Brand Features when used as authorized herein infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement. Notwithstanding the foregoing, Pursuit Solutions will have no obligations or liability under this Section or otherwise, and You will indemnify and hold harmless Pursuit Solutions, with respect to any claim or award to the extent arising from (i) a combination of the Services or Pursuit Solutions Brand Features with any other product, service, software, hardware, data, method, or content, including Your Content, (ii) use of the Services for a purpose or in a manner not permitted by this Agreement, or in a manner for which the Services were not designed, (iii) any modification of the Services or Pursuit Solutions Brand Features made without express written approval by Pursuit Solutions, (iv) Your or any Users’ use of non-current or unsupported versions of the Services or Pursuit Solutions Brand Features, (v) breach of this Agreement by any of Your Indemnified Parties, or (vi) any Trial Service. In addition, Pursuit Solutions will have no obligations or liability arising from Your or any User’s use of the Services after Pursuit Solutions has notified You to discontinue such use.
(b) You will defend and indemnify the Pursuit Solutions Indemnified Parties against any third-party claim alleging that any of Your Content or Your Brand Features infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) If the Services become, or in the opinion of Pursuit Solutions may become, the subject of a third-party infringement or misappropriation claim, then Pursuit Solutions may, at its sole option and expense (i) procure the right for You to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing, functionally equivalent alternative. If Pursuit Solutions believes none of the foregoing remedies are commercially reasonable, then Pursuit Solutions may Suspend or terminate Your and all Users’ right to access and use the impacted Services. In the event of any termination pursuant to this Section 10.2(c), Pursuit Solutions will refund any pre-paid Fees (less any discounts provided and without consideration of any prepayment discount applied) for the Services pro-rated for the remaining Service Term.
(d) The remedies provided in this Section 10.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services, either party’s Brand Features, or Your Content.
10.3. Process. The obligations under this Section 10 will apply only if the party seeking defense or indemnity (the “Indemnified Party”) (a) provides the other party (the “Indemnifying Party”) prompt written notice of the claim, (b) provides the Indemnifying Party with sole control over the defense and settlement of the claim, and (c) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim. In no event will the Indemnifying Party agree to any settlement of any claim that requires the Indemnified Party to admit liability or pay money without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned, or delayed.
10.4. Indemnity for Third-Party Products. To the extent required or permitted by agreements between Pursuit Solutions and the providers of Third-Party Products, Pursuit Solutions will pass through to You rights to indemnification received with respect to Third-Party Products, if any. Notwithstanding the foregoing, You acknowledge that Pursuit Solutions is not responsible for the fulfillment of any Third-Party Product indemnities or for issues attributable to use of Third-Party Products.
11. General Provisions.
11.1. Publicity. Pursuit Solutions may use Your name and logo on the Site and marketing materials solely to identify You as a Pursuit Solutions customer and provided such use does not reveal any of Your Confidential Information.
11.2. Disputes.
(a) Generally. Notwithstanding any other provisions in this Agreement, and except as otherwise set forth in this Section, if either You or Pursuit Solutions has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Service Offerings, including any claim regarding the applicability, interpretation, enforceability, scope, validity, or formation of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between You and Pursuit Solutions, then such Legal Claim will be settled by confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules of the AAA (the “AAA Rules”). The award of the arbitrator shall be accompanied by a reasoned opinion. Judgement on the award may be entered in any court of competent jurisdiction. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. This Section shall not preclude either party from seeking (i) equitable relief in accordance with the Terms of Service; or (ii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction.
(b) Process. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in the State of Delaware or any other location that is mutually agreed upon by You and Pursuit Solutions. A single arbitrator will be mutually selected by You and Pursuit Solutions and shall be (i) a practicing attorney licensed to practice law in Delaware or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in finance, technology, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and Pursuit Solutions cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules.
11.3. Governing Law. Except as otherwise expressly provided herein, all claims shall be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply S.A. law to some types of disputes. If You reside in one of those countries, then where S.A. law is excluded from applying, the laws of Your country of residence will apply.
11.4. Modifications. Pursuit Solutions may modify this Agreement at any time, in our sole discretion. If we make any material modifications to this Agreement, we shall inform You by posting the modified terms at https://www.Pursuit Solutions.com/legal/. It is Your responsibility to check periodically for modifications to this Agreement. The modified Agreement will be effective upon Your next subscription renewal following posting of the updated terms. Your continued access or use of the Service Offerings after such renewal confirms Your consent to be bound by this Agreement, as amended. If You do not agree to be bound by the modified terms, then You may not continue to use the Service Offerings.
11.5. Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, representations, warranties, proposals, negotiations, discussions, understandings, or agreements (whether oral, written, implied, or otherwise) between the parties with respect to the subject matter hereof. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty, except those expressly set out in this Agreement. The terms located at any URL referenced in this Agreement and/or any Order are incorporated by reference into this Agreement. After this Agreement is effective, Pursuit Solutions may provide an updated URL in place of any URL in this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order, the terms at any URL, and the terms contained in the body of this Agreement. Any additional or conflicting terms contained in any purchase order, proposal, or other document provided by You shall be deemed rejected by Pursuit Solutions without need of further notice of objection, even if such document is acknowledged or accepted by Pursuit Solutions, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Pursuit Solutions. Except as otherwise expressly set forth herein, any amendment to this Agreement must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
11.6. Third-Party Beneficiaries. Pursuit Solutions shall be a third-party beneficiary of any contract between You and Users with respect to the Service Offerings, and shall be entitled to enforce the obligations therein. Other than as expressly provided herein, no third-party beneficiaries are intended or will be construed as created by this Agreement.
11.7. Notices.
(a) To You. Pursuit Solutions may provide any notice to You under this Agreement by (i) posting a notice on the Pursuit Solutions Site or Dashboard, or (ii) sending a message to the email address then associated with Your Account. Notice Pursuit Solutions provides by posting on the Pursuit Solutions Site or Dashboard will be effective upon posting and notice Pursuit Solutions provides by email will be effective when the email is sent. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when Pursuit Solutions sends the email, whether or not You actually receive the email.
(b) To Pursuit Solutions. To provide Pursuit Solutions notice under this Agreement, you must do so via personal delivery, overnight courier or registered or certified mail to Pursuit Solutions, Prism Business Park, Building 1, Ruby Close, Fourways, South Africa Attention: Legal Department. Pursuit Solutions may update its address for notice by providing notice of such change pursuant to subsection (a) above. Notice provided by personal delivery will be effective immediately. Notice provided by overnight courier will be effective one (1) business day after it is sent. Notice provided registered or certified mail will be effective three (3) business days after it is sent.
11.8. Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a S.A. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the Service Offerings, including Your transfer and processing of Your Content, the provision of Your Content to Users, and the geographic region in which any of the foregoing occur.
11.9. S.A. Government Rights. The Service Offerings are provided to the S.A. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If You are using the Service Offerings on behalf of the S.A. Government and these terms fail to meet the S.A. Government’s needs or are inconsistent in any respect with the law, You will immediately discontinue Your use of the Service Offerings.
11.10. Questions. If You have any questions regarding this Agreement, please contact Pursuit Solutions at legal@psit.co.za
Revision Date
Last revised August 6, 2025
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