Terms & Conditions

PickApps Terms of Service

These PickApps Terms of Service (together, the "Agreement") are entered into by PickApps and the entity or person agreeing to them ("Customer") and govern Customer's access to and use of the Services.
This Agreement is effective when the Customer accepts a quote provided by PickApps, or when
the Customer sends a Purchase Order, or when the Customer pays for the Services with a Credit Card (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.
1. Provision of the Services.
1.1. Services Use. During the Term, PickApps will provide the Services in accordance
with the Agreement. Customer may use the Services ordered in the applicable Order Form or Reseller Order in accordance with this Agreement.
1.2. 1.2 Admin Console. Customer will have access to the Admin Console, through
which Customer may manage its use of the Services.
1.3. Accounts; Verification to Use Services.
1.3.1. Accounts. Customer can have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and any use of its Account. PickApps has no obligation to provide multiple accounts to Customer.
1.3.2. Verification to Use Services. Customer must verify a Domain Email Address or a Domain Name to use the Services. If Customer does not have valid permission to use the Domain Email Address or does not own or control the Domain Name, then PickApps will have no obligation to provide Customer with the Services and may delete the Account without notice.
1.4. Modifications.
1.4.1. To the Services. PickApps may make commercially reasonable changes to the Services from time to time. PickApps will inform Customer if PickApps
(i) makes a material change to the Services that has a material impact on Customer's use of the Services and
(ii) if Customer has subscribed with PickApps to be informed about such change.
1.4.2. To the Agreement. PickApps may change the terms of this Agreement from time to time and will post any such changes at https://cdn.PickApps.it/terms/terms_en.pdf. These changes will only take effect at the beginning of Customer’s next Order Term, at which time Customer’s continued use of the Services will constitute its acceptance of the changes.
1.4.3. To the Data Processing Amendment. PickApps may only change the Data Processing Amendment where such change is required to comply with applicable law, is expressly permitted by the Data Processing Amendment,
or:
1.4.3.1. is commercially reasonable;
1.4.3.2. does not result in a material reduction of the security of the Services;
1.4.3.3. does not expand the scope of or remove any restrictions on PickApps's processing of "Customer Personal Data," as described in the "Scope of Processing" Section of the Data Processing Amendment; and
1.4.3.4. does not otherwise have a material adverse impact on Customer's rights under the Data Processing Amendment.
1.4.4. If PickApps makes a material change to the Data Processing Amendment in accordance with this Section 1.4.3 (Modifications to the Data Processing Amendment), PickApps will post the change at the webpage containing the Data Processing Amendment.
1.4.5. Discontinuation of Core Services. PickApps will notify Customer at least 12 months before discontinuing any Core Service (or associated material functionality) unless PickApps replaces such discontinued Core Service or functionality with a materially similar Core Service or functionality. Nothing in this Section 1.4.5 (Discontinuation of Core Services) limits PickApps's ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden.
2. Payment Terms.
2.1. Usage Measurement and Billing Options. PickApps’s measurement tools will be
used to determine Customer’s usage of the Services and any such determination by
PickApps for the purpose of calculating Fees is final. Customer may elect one of the
billing options below or any other option offered by PickApps when Customer places
its order for the Services.
2.1.1. Monthly Plan. If Customer selects this option, Customer will be committed to
purchasing the Services for one or more monthly terms (as selected by
Customer). PickApps will bill Customer according to the terms associated
with Customer’s elections on the Order Form.
2.1.2. Annual Plan. If Customer selects this option, Customer will be committed to
purchasing the Services for one or more annual terms (as selected by
Customer). PickApps will bill Customer according to the terms associated
with Customer’s elections on the Order Form.
2.2. PickApps may change its offering of billing options (including by limiting or ceasing
to offer any billing option) upon 30 days’ notice to Customer and any such change
will take effect at the beginning of Customer’s next Order Term. Billing options may
not be available to all customers. Customer may pay for the Services using the
payment options listed in Section 2.3 (Payment) below.
2.3. Payment. All payments are due in the currency stated on the Order Form or invoice.
2.3.1. Credit Card. If Customer is paying with a credit card, or other non-invoice
form of payment payments are due at the beginning of the period during
which Customer will receive the Services. For credit cards, as applicable: (i)
PickApps or a payment processor on PickApps’s behalf will issue an
electronic bill for all applicable Fees when due, and (ii) these Fees are
considered overdue at the beginning of the period during which Customer
will receive the Services.
2.3.2. Invoices. Payments for invoices are due 30 days after the invoice date
(unless otherwise specified on the Order Form) and are considered overdue
after such date.
2.4. Taxes.
2.4.1. Customer is responsible for any Taxes, and will pay PickApps for the
Services without any reduction for Taxes. If PickApps is obligated to collect
or pay any Taxes, the Taxes will be invoiced to Customer and Customer will
pay such Taxes to PickApps, unless Customer provides PickApps with a
timely and valid tax exemption certificate in respect of those Taxes.
2.4.2. Customer will provide PickApps with any applicable tax identification
information that PickApps may require under applicable law to ensure its
compliance with applicable tax regulations and authorities in applicable
jurisdictions. Customer will be liable to pay (or reimburse PickApps for) any
taxes, interest, penalties, or fines arising out of any mis-declaration by
Customer.
2.5. Payment Disputes. Any payment disputes must be submitted before the payment
due date. If the parties determine that certain billing inaccuracies are attributable to
PickApps, PickApps will not issue a corrected invoice, but will instead issue a credit
memo specifying the incorrect amount in the affected invoice. If a disputed invoice
has not yet been paid, PickApps will apply the credit memo amount to the disputed
invoice and Customer will be responsible for paying the resulting net balance due
on that invoice. Nothing in this Agreement obligates PickApps to extend credit to any
party.
2.6. Delinquent Payments; Suspension. Late payments may bear interest at the rate of
1.5% per month (or the highest rate permitted by law, if less) from the payment due
date until paid in full. Customer will be responsible for all reasonable expenses
(including attorneys' fees) incurred by PickApps in collecting such delinquent
amounts. Further, if Customer’s payment for the Services is overdue, PickApps may
Suspend the Services.
2.7. No Purchase Order Number Required. Customer is obligated to pay all applicable
Fees without any requirement for PickApps to provide a purchase order number on
PickApps's invoice (or otherwise).
2.8. Price Revisions. PickApps may change the Prices at any time unless otherwise
expressly agreed in an addendum or Order Form. PickApps will notify Customer at
least 30 days in advance of any changes. Customer's pricing will change at the
beginning of Customer’s next Order Term after the 30-day period.
3. Customer Obligations.
3.1. Compliance. Customer will
(a) ensure that Customer and its End Users' use of the Services complies with the
Agreement,
(b) use commercially reasonable efforts to prevent and terminate any unauthorized
use of, or access to, the Services, and
(c) promptly notify PickApps if Customer becomes aware of any unauthorized use
of, or access to, the Services, Account, or Customer's password. PickApps reserves
the right to investigate any potential violation of the acceptable use policy for the
Services by Customer, which may include reviewing Customer Data.
3.2. Privacy. Customer is responsible for any consents and notices required to permit
(a) Customer's use and receipt of the Services, and
(b) PickApps's accessing, storing, and processing of data provided by Customer
(including Customer Data) under the Agreement.
3.3. Restrictions. Customer will not, and will not allow End Users to,
(a) copy, modify, or create a derivative work of the Services;
(b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to
extract any or all of the source code of, the Services (except to the extent such
restriction is expressly prohibited by applicable law);
(c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or
(d) access or use the Services
(i) in violation of the acceptable use policy for the Services;
(ii) in a manner intended to avoid incurring Fees (including creating multiple
Customer Accounts to simulate or act as a single Customer Account or to
circumvent Service-specific usage limits or quotas).
4. Suspension.
4.1. Violations of Acceptable Use Policy for the Services. If PickApps becomes aware
that Customer's or any End User's use of the Services violates the acceptable use
policy for the Services, PickApps will notify Customer and request that Customer
correct the violation. If Customer fails to correct the violation within 24 hours of
PickApps's request, then PickApps may Suspend all or part of Customer's use of the
Services until the violation is corrected. Suspension of the Services may include
removal or unsharing of content that violates the acceptable use policy for the
Services.
4.2. Other Suspension. Notwithstanding Section 4.1 (Violations of Acceptable Use Policy
for the Services), PickApps may immediately Suspend all or part of Customer's use
of the Services (including use of the underlying Account) if
(a) PickApps reasonably believes Customer's or any End User's use of the Services
could adversely impact the Services, other customers' or their end users' use of the
Services, or the PickApps network or servers used to provide the Services;
(b) there is suspected unauthorized third-party access to the Services;
(c) PickApps reasonably believes that immediate Suspension is required to comply
with any applicable law; or
(d) Customer is in breach of Section 3.3 (Restrictions) or the Service Specific
Terms. PickApps will lift any such Suspension when the circumstances giving rise to
the Suspension have been resolved. At Customer's request, PickApps will, unless
prohibited by applicable law, notify Customer of the basis for the Suspension as
soon as is reasonably possible.
5. Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features
Within the Services.
5.1. Intellectual Property Rights. Except as expressly stated in this Agreement, this
Agreement does not grant either party any rights, implied or otherwise, to the other's
content or any of the other's intellectual property. As between the parties, Customer
owns all Intellectual Property Rights in Customer Data, and PickApps owns all
Intellectual Property Rights in the Services.
5.2. Protection of Customer Data. PickApps will only access or use Customer Data to
provide the Services and TSS to Customer or as otherwise instructed by Customer.
Without limiting the generality of the preceding sentence, PickApps will not process
Customer Data for Advertising purposes or serve Advertising in the Services.
PickApps has implemented and will maintain administrative, physical, and technical
safeguards to protect Customer Data, as further described in the Data Processing
Amendment.
5.3. Customer Feedback. At its option, Customer may provide feedback or suggestions
about the Services to PickApps ("Feedback"). If Customer provides Feedback, then
PickApps may use that Feedback without restriction and without obligation to
Customer.
6. Confidential Information.
6.1. Obligations. The recipient will only use the disclosing party's Confidential
Information to exercise the recipient’s rights and fulfill its obligations under the
Agreement, and will use reasonable care to protect against the disclosure of the
disclosing party's Confidential Information. The recipient may disclose Confidential
Information only to its Affiliates, employees, agents, or professional advisors
("Delegates") who need to know it and who have agreed in writing (or in the case of
professional advisors are otherwise bound) to keep it confidential. The recipient will
ensure that its Delegates use the received Confidential Information only to exercise
rights and fulfill obligations under this Agreement.
6.2. Required Disclosure. Notwithstanding any provision to the contrary in this
Agreement, the recipient or its Affiliate may also disclose Confidential Information to
the extent required by applicable Legal Process; provided that the recipient or its
Affiliate uses commercially reasonable efforts to
(a) promptly notify the other party before any such disclosure of its Confidential
Information, and
(b) comply with the other party'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 Legal Process;
(ii) obstruct a governmental investigation; or
(iii) lead to death or serious physical harm to an individual.
7. Term and Termination.
7.1. Agreement Term. The term of this Agreement (the "Term") will begin on the Effective
Date and continue until the Agreement is terminated or not renewed as stated in this
Section 8 (Term and Termination).
7.2. Renewal.
7.2.1. With an Annual/Monthly Plan. At the end of each Order Term for an
Annual/Monthly Plan, the Services will renew consistent with Customer’s
elections in the Order Form or Admin Console.
7.2.2. Generally. If either party does not want the Services to renew, then it must
notify the other party to this effect at least 15 days before the end of the
then-current Order Term, and this notice of non-renewal will take effect at the
end of the then-current Order Term.
7.3. Termination for Breach. To the extent permitted by applicable law, either party may
terminate this Agreement immediately on written notice if
(a) the other party is in material breach of the Agreement and fails to cure that
breach within 30 days after receipt of written notice of the breach, or
(b) the other party ceases its business operations or becomes subject to insolvency
proceedings and the proceedings are not dismissed within 90 days.
7.4. Termination for Convenience. Customer may stop using the Services at any time.
Subject to Customer fulfilling all its financial commitments under an Order Form or
otherwise under this Agreement (including payment of all Fees for the Order Term),
Customer may also terminate this Agreement for its convenience at any time on
prior written notice.
7.5. Termination Due to Applicable Law; Violation of Laws. PickApps may terminate this
Agreement and/or any applicable Order Form immediately on written notice if
PickApps reasonably believes that
(a) continued provision of any Service used by Customer would violate applicable
law(s) or
(b) Customer has violated or caused PickApps to violate any Anti-Bribery Laws or
Export Control Laws.
7.6. Effect of Termination or Non-Renewal. If the Agreement is terminated or not
renewed, then
(a) all rights and access to the Services will cease (including access to Customer
Data), unless otherwise described in this Agreement, and
(b) all Fees owed by Customer to PickApps are immediately due upon Customer’s
receipt of the final electronic bill or as stated in the final invoice.
7.7. No Refunds. Unless expressly stated otherwise in this Agreement, termination or
non renewal under any section of this Agreement (including the Data Processing
Amendment) will not oblige PickApps to refund any Fees.
8. Publicity. Customer may state publicly that it is a PickApps customer. PickApps may use
Customer's name and Brand Features in online or offline promotional materials of the
Services. Each party may use the other party’s Brand Features only as permitted in the
Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding
Intellectual Property Rights to those Brand Features.
9. Representations and Warranties. Each party represents and warrants that
(a) it has full power and authority to enter into the Agreement, and
(b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as
applicable.
10. Disclaimer. Except as expressly provided for in the Agreement, PickApps does not make
and expressly disclaims to the fullest extent permitted by applicable law
(a) any warranties of any kind, whether express, implied, statutory, or otherwise, including
warranties of merchantability, fitness for a particular use, title, non-infringement, or
error-free or uninterrupted use of the Services and
(b) any representations about content or information accessible through the Services.
11. Limitation of Liability.
11.1. Limitation on Indirect Liability. To the extent permitted by applicable law and subject
to Section 12.3 (Unlimited Liabilities), neither party will have any Liability arising out
of or relating to the Agreement for any
(a) indirect, consequential, special, incidental, or punitive damages or
(b) lost revenues, profits, savings, or goodwill.
11.2. Limitation on Amount of Liability. Each party's total aggregate Liability for damages
arising out of or relating to the Agreement is limited to the Fees Customer paid
during the 12 month period before the event giving rise to Liability.
11.3. Unlimited Liabilities. Nothing in the Agreement excludes or limits either party's
Liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its obligations under Section 13 (Indemnification);
(c) its infringement of the other party's Intellectual Property Rights;
(d) its payment obligations under the Agreement; or
(e) matters for which liability cannot be excluded or limited under applicable law.
12. Indemnification.
12.1. PickApps Indemnification Obligations. PickApps will defend Customer and indemnify
him against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent
arising from an allegation that any Service or any PickApps Brand Feature, in each
case used in accordance with the Agreement, infringes the third party's Intellectual
Property Rights.
12.2. Customer Indemnification Obligations. Customer will defend PickApps and its
Affiliates providing the Services and indemnify them against Indemnified Liabilities in
any Third-Party Legal Proceeding to the extent arising from (a) any Customer Data
or Customer Brand Features or (b) Customer's or an End User's use of the Services
in breach of the acceptable use policy or Section 3.3 (Restrictions).
12.3. Exclusions. Sections 12.1 (PickApps Indemnification Obligations) and 12.2
(Customer Indemnification Obligations) will not apply to the extent the underlying
allegation arises from
(a) the indemnified party's breach of the Agreement or
(b) a combination of the indemnifying party's technology or Brand Features with
materials not provided by the indemnifying party under the Agreement, unless the
combination is required by the Agreement.
12.4. Conditions. Sections 12.1 (PickApps Indemnification Obligations) and 12.2
(Customer Indemnification Obligations) are conditioned on the following:
(a) Any indemnified party must promptly notify the indemnifying party in writing of
any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate
reasonably with the indemnifying party to resolve the allegation(s) and Third-Party
Legal Proceeding. If breach of this Section 12.4 prejudices the defense of the
Third-Party Legal Proceeding, the indemnifying party's obligations under Section
12.1 (PickApps Indemnification Obligations) or 12.2 (Customer Indemnification
Obligations) (as applicable) will be reduced in proportion to the prejudice.
(b) Any indemnified party must tender sole control of the indemnified portion of the
Third-Party Legal Proceeding to the indemnifying party, subject to the following:
(i) the indemnified party may appoint its own non-controlling counsel, at its own
expense and
(ii) any settlement requiring the indemnified party to admit liability, pay money, or
take (or refrain from taking) any action, will require the indemnified party's prior
written consent, not to be unreasonably withheld, conditioned, or delayed.
12.5. Remedies.
12.5.1. If PickApps reasonably believes the Services might infringe a third party's
Intellectual Property Rights, then PickApps may, at its sole option and
expense
(i) procure the right for Customer 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.
12.5.2. If PickApps does not believe the remedies in Section 12.5.1 are
commercially reasonable, then PickApps may Suspend or terminate
Customer's use of the impacted Services. If PickApps terminates the
impacted Services, then PickApps will provide a pro-rata refund of any
unearned Fees actually paid by Customer applicable to the period following
termination of such Services.
12.6. Sole Rights and Obligations. Without affecting any other termination rights of either
party, this Section 12 (Indemnification) states the parties' sole and exclusive remedy
under this Agreement for any third-party allegations of Intellectual Property Rights
infringement covered by this Section 12 (Indemnification).
13. Miscellaneous.
13.1. Notices. Under the Agreement, notices to Customer must be sent to the Notification
Email Address and notices to PickApps must be sent to info@PickApps.it. Notice will
be treated as received when the email is sent. Customer is responsible for keeping
its Notification Email Address current throughout the Term.
13.2. Emails. The parties may use emails to satisfy written approval and consent
requirements under the Agreement.
13.3. Assignment. Neither party may assign any part of this Agreement without the written
consent of the other, except to an Affiliate where
(a) the assignee has agreed in writing to be bound by the terms of this Agreement,
and
(b) the assigning party has notified the other party of the assignment.
Any other attempt to assign is void. If Customer assigns this Agreement to an
Affiliate in another jurisdiction such that there is a change in the PickApps
contracting entity:
(i) this Agreement is automatically assigned to the new PickApps contracting entity;
and
(ii) if the Affiliate’s billing account is in India or Brazil, the applicable terms of service
linked above, and not this Agreement, will apply from the moment of the
assignment.
13.4. Change of Control. If a party experiences a change of Control other than as part of
an internal restructuring or reorganization (for example, through a stock purchase or
sale, merger, or other form of corporate transaction), that party will give written
notice to the other party within 30 days after the change of Control.
13.5. Force Majeure. Neither party will be liable for failure or delay in performance to the
extent caused by circumstances beyond its reasonable control, including acts of
God, natural disasters, terrorism, riots, or war.
13.6. Subcontracting. PickApps may subcontract obligations under the Agreement but will
remain liable to Customer for any subcontracted obligations.
13.7. No Agency. This Agreement does not create any agency, partnership, or joint
venture between the parties.
13.8. No Waiver. Neither party will be treated as having waived any rights by not
exercising (or delaying the exercise of) any rights under this Agreement.
13.9. Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the
rest of the Agreement will remain in effect.
13.10. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any
third party unless it expressly states that it does.
13.11. Survival. The following Sections will survive expiration or termination of this
Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights),
Section 6 (Confidential Information), Section 10 (Disclaimer), Section 11 (Limitation
of Liability), Section 12 (Indemnification).
13.12. Entire Agreement. This Agreement sets out all terms agreed between the parties
and terminates and supersedes any and all other agreements between the parties
relating to its subject matter, including any prior versions of this Agreement. 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 (whether
made negligently or innocently), except those expressly stated in this Agreement.
The URL Terms are incorporated by reference into the Agreement. After the
Effective Date, PickApps may provide an updated URL in place of any URL in this
Agreement.
13.13. Conflicting Terms. If there is a conflict between the documents that make up this
Agreement, the documents will control in the following order (of decreasing
precedence): the Order Form, the Data Processing Amendment, the remainder of
the Agreement (excluding the URL Terms), and the URL Terms (other than the Data
Processing Amendment).
13.14. Headers. Headings and captions used in the Agreement are for reference purposes
only and will not have any effect on the interpretation of the Agreement.
13.15. Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.

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