Pinecone Services Agreement

Please read this Pinecone Services Agreement (“Agreement”) before clicking the “I accept” button, and/or using the Pinecone Systems, Inc. (“Pinecone”) Hosted Services or the underlying Platform (as defined below). By entering into an Order Form (as defined below) or by clicking the “I Accept” button, and by using the Hosted Services in any way, you and the entity that you represent (“Customer” or “you”) are unconditionally consenting to be bound by and becoming a party to this Agreement with Pinecone and you represent and warrant that you have the authority to bind such entity to this Agreement. If you do not unconditionally agree to all of the terms of this Agreement, use of the Hosted Services is strictly prohibited. If Customer has executed, or subsequently executes, a separate agreement with Pinecone with respect to use of the Hosted Services (“Other Agreement”), then the terms and conditions of such Other agreement shall govern and control your use of the Hosted Services. For the purposes hereof, an "Order Form" means a separate ordering document that references this Agreement, specifies the Hosted Services purchased hereunder, and is executed by Customer and Pinecone.

PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY PINECONE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Pinecone will make a new copy of this Agreement available on the Platform. We will also update the “Last Updated” date at the top of the Agreement. If we make material changes to this Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail or another manner through the Platform (which may include posting an announcement on our Platform). Pinecone may require you to provide consent to the updated Agreement in a specified manner before further use of the Hosted Services is permitted. If you do not agree to any of the changes after receiving a notice of such changes, you shall stop accessing the Platform and using Hosted Services. Otherwise, your continued use of the Hosted Services (or access to the Platform) constitutes your acceptance of such changes.

1. PLATFORM AND HOSTED SERVICES.
   1. Access. Pinecone’s proprietary solution is a platform that leverages machine learning to improve serving capacity, including hosting, real time scoring, operations, scaling, reporting, monitoring, and testing to solve problems related to “many-to-many relationships,” such as search, retrieval, ranking, matching, and deduplication (the “Platform”). Customer wishes to access and utilize the Platform, and Pinecone desires to make the Platform available to Customer, subject to the following terms and conditions (the provisioning of the Platform, the “Hosted Services”). Pinecone hereby grants Customer, during the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Hosted Services, including by installing any downloadable components of the Platform made available by Pinecone and using and accessing any other materials provided to Customer by Pinecone in connection with the Hosted Services (“Materials”), solely for Customer’s internal business purposes. Customer agrees to provide only truthful and accurate information in connection with obtaining usernames and passwords (including API access keys) (collectively, “User IDs”) to access the Hosted Services. Customer is responsible for all acts and omissions of any users of Customer’s account or User ID and will undertake reasonable efforts to make all such users aware of the provisions of this Agreement as applicable to such users’ use of the Hosted Services, and will cause such users to comply with such provisions. Any act or omission by any such third party which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer. Customer is responsible for maintaining the confidentiality of the User IDs, and is solely responsible for all activities that occur thereunder. Customer agrees to notify Pinecone promptly of any actual or suspected unauthorized use of its account or User ID, or any other breach or suspected breach of this Agreement. Pinecone reserves the right to terminate any User ID that Pinecone reasonably determines may have been used by an unauthorized third party.
   2. Free or Trial Subscriptions. From time to time and in its sole discretion, Pinecone may offer limited free access to the Hosted Services (for purposes of this Section, “Trial Services”) so that you can test whether the Hosted Services meet your needs. Because Trial Services are limited and are provided free of charge, to the extent permitted by law, (i) we make them available to you solely “AS IS” without any warranties of any kind (and we are under no obligation to provide you with support for Trial Services); (ii) we may discontinue the Trial Services or your ability to use them at any time, with or without notice and without any further obligations to you; (iii) you agree that our indemnification obligations under Section 12 do not extend to any claims related to your use or inability to use the Trial Services; and (iv) you agree that our support obligations under Section 5 do not apply to your use of the Trial Services. Except as expressly stated in this Section 1.2, the Trial Services shall be subject in all respects to the terms and conditions of this Agreement. Pinecone may allow you to continue using Hosted Services provided as Trial Services on a paid basis, but your continued use is subject to the payment of the applicable Fees in accordance with Section 6.
   3. Open Source. Certain items of software that may be provided to Customer as part of the Platform are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 1.1 or 12. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Pinecone makes such Open Source Software, and Pinecone’s modifications to that Open Source Software, available by written request at the notice address specified herein.
   4. Changes. From time to time, Pinecone reserves the right to release updates to or upgrades of the Hosted Services, including new versions of the Hosted Services, and to otherwise change or discontinue any aspect or feature of the Hosted Services. Changes may not be consistent across all platforms and devices. Pinecone will use commercially reasonable efforts to notify Customer (including posting through the Hosted Services) of changes to the Hosted Services that Pinecone believes will materially affect use of the Hosted Services.
2. RESTRICTIONS ON USE. Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (i) license, sublicense, sell, resell, transfer, assign, distribute or make available, in whole or in part, the Hosted Services or the Materials to any third party; (ii) copy, translate, decompile, disassemble, reverse-engineer or otherwise modify or make derivative works based upon the Hosted Services or the Materials; (iii) build a product using similar ideas, features, functions or graphics of the Hosted Services or Materials or otherwise engage in competitive benchmarking; (iv) disclose the results of any benchmark test of the Hosted Services or the Materials to any third party without Pinecone’s prior written approval; (v) use the Hosted Services to (A) send or store infringing, threatening, harassing, defamatory, libelous, obscene, pornographic, indecent or otherwise unlawful or tortious materials, including materials harmful to children or violating third-party privacy rights, or (B) send or store materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs (vi) interfere with or disrupt the integrity or performance of the Hosted Services or the data contained therein, or attempt to probe, scan or test vulnerability of the Hosted Services without prior authorization of Pinecone; or (vii) attempt to gain unauthorized access to the Hosted Services or its related systems or networks, including the Platform itself.
3. DATA.
   1. License to Customer Data. “Customer Data” means any data, information, or materials that Customer discloses or submits to Pinecone in the course of using the Hosted Services. Customer hereby grants Pinecone and its suppliers a non-exclusive, royalty-free license to access, use, reproduce, modify and display the Customer Data for the purposes of (i) providing the Hosted Services, (ii) exercising its rights and obligations under this Agreement; (iii) generating Aggregated and Anonymous Data (as defined below); and (iv) complying with its obligations under law. All rights in and to the Customer Data not expressly granted herein are retained by Customer. Without limiting the foregoing, Customer will be solely responsible for providing all appropriate notices to third parties (including all employees, agents, and independent contractors (collectively, “Personnel”)) and obtaining from third parties (including Personnel) all necessary consents and rights for Pinecone to use the Customer Data submitted by or on behalf of Customer for the purposes set forth in this Agreement, including all consents required in accordance with all applicable privacy laws. Customer shall immediately notify, and address with, Pinecone any complaints or claims by Personnel with respect to the sharing of the Customer Data involving such Personnel.
   2. Performance Data. “Performance Data” means any analytics or similar data collected, generated or processed by Pinecone based on Customer’s access to and use of the Platform or Hosted Services (“Performance Data”). Performance Data will be owned by Pinecone, and Pinecone may collect and usesuch Performance Data for any lawful purpose, provided Pinecone will only disclose Performance Data to third parties, including its subcontractors, for the purposes of facilitating the Hosted Services, for internal purposes, including to improve its products and services, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law.
   3. Aggregated and Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Pinecone may obtain and use Customer Data and Performance Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Customer or any individual or entity (the “Aggregated and Anonymous Data”). Customer further agrees that Pinecone shall own such Aggregated and Anonymous Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.
   4. Customer Responsibility. Customer will be responsible for providing all Customer Data to Pinecone and will provide such Customer Data in a format consistent with the requirements set forth in the documentation (or as otherwise specified by Pinecone). Errors in loading Customer Data into the Platform may cause Customer Data to be rejected by the Platform and Pinecone will have no responsibility for any related impact on Customer’s ability to access or use the Platform.
4. PROPRIETARY RIGHTS.
   1. Ownership. Pinecone and its suppliers own all right, title and interest in and to the Hosted Services (including the Platform, but excluding any Customer Data hosted therein), Performance Data, Aggregated and Anonymous Data, and any Materials, including but not limited to concepts, specifications, integration scenarios and examples of code, and all intellectual property rights in each of the foregoing. All rights in and to the Hosted Services, including the Platform, and Materials not expressly granted herein are retained by Pinecone.
   2. Feedback. Notwithstanding anything to the contrary herein, Pinecone may freely use and incorporate into Pinecone’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Hosted Services, the Platform, and the Materials (“Feedback”). Customer acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Pinecone, and hereby assigns to Pinecone, all right, title and interest to any and all Feedback.
   3. Publicity. Pinecone may use Customer’s name and logo (“CustomerMarks”) in its Customer list (including on Pinecone’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. Pinecone shall use Customer Marks in accordance with Customer’s applicable branding guidelines and Pinecone may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).
5. SUPPORT SERVICES. Subject to the terms and conditions of this Agreement, Pinecone will exercise commercially reasonable efforts to provide support for the use of the Platform and Hosted Services to Customer.
6. FEES AND PAYMENT TERMS.
   1. Fees. The fees for access to and use of the Hosted Services (“Fees”) are based on Platform usage, in accordance with the pricing set forth: (a) on the Pinecone Pricing webpage (https://www.pinecone.io/pricing/) for Customers signing up to the Service online, and (b) in the Order Form, for Customers executing an Order Form.. Pinecone reserves the right to change the Fees or its pricing model at any time during the term provided that any such change will go into effect no earlier than thirty (30) days after the change is posted to the Pinecone Pricing webpage, and provided further that if the Fees are specified in an Order Form, no changes to the Fees will become effective until the expiration of the then-current subscription term covered by that Order Form. Unless otherwise expressly specified in an Order Form, the Fees are calculated at the end of each month based on Customer’s usage of the Hosted Services.
   2. Order Form Fees. In connection with Fees due under an Order Form, the following shall apply:
      1. Annual and Additional Commitments. Upon execution of an Order Form, Customer shall prepay to Pinecone an initial annual commitment in the amount listed in the Order Form (“Annual Commitment”) in accordance with the terms of the Order Form. Thereafter during the term of that Order Form (“Order Term”), Customer may elect to prepay additional Fees (an "Additional Commitment") to receive additional discounts, as determined by the Parties at the time such Additional Commitment is committed. The Annual Commitment, together with any Additional Commitment, is referred to herein as the “Total Commitment.”
      2. Rate Discounts. Prepayment of the Annual Commitment listed in an Order Form entitles Customer to the discounts set forth in that Order Form during the Order Term, to the extent applicable, on the Platform usage rates set forth in the Order Form, and if no such rates are set forth in the Order Form, then the rates set forth on the Pinecone Pricing webpage (such Platform usage rates, the “Consumption Rates”). Such discounts will be applied to Customer’s actual usage of the Hosted Services until actual usage during the Order Term multipliedby the discounted Consumption Rate equals the Annual Commitment for that Order Form. Prepayment of any Additional Commitment during the Order Term may be subject to discounts that are separately agreed upon in writing by the Parties when the Additional Commitment is agreed upon.
      3. Rollover of Total Commitment. Subject to the terms contained herein, Customer may roll over a portion of the unused Total Commitment from one Order Term to a new Order Term (“Allowable Rollover”) if at least fifteen (15) days before the end of the then-current Order Term, Customer executes a new Order Form with an Annual Commitment that is equal to or greater than the amount of Annual Commitment paid by Customer for the then-current Order Term (excluding any discounts or rollovers). The amount of any Allowable Rollover to be applied to a new Order Form will be agreed upon and specified in the then-current Order Form. Except as provided in this Section 6.2(c), any unused portion of the Total Commitment from an expiring Order Term will lapse and Customer will have no right to receive any credit or refund with respect to the unused Total Commitment. Allowable Rollovers agreed upon in an Order Form will not apply or count toward any future consumption commitments or discounts that are to be applied to any new Order Form.
      4. Fees for Usage in Excess of Total Commitment. If Customer’s use of the Hosted Services during an Order Term exceeds the usage covered by the Total Commitment made for that Order Term, such usage will be subject to Customer’s payment of additional Fees. Pinecone shall invoice Customer monthly in arrears for any Fees incurred that are in excess of the Total Commitment, and any such Fees will be charged at the rates set forth on the Pinecone Pricing webpage (https://www.pinecone.io/pricing/) at the time they are incurred. Other than with respect to any Total Commitment agreed upon in an individual Order Form, Pinecone reserves the right to change the Fees or its pricing model at any time during the Order Term.
   3. Payment. Customer shall pay Pinecone the Fees stated on the pricing page of the Website, in your Account, in an Order Form, or as otherwise specified in this Agreement. All Fees are quoted in United States Dollars, and except as otherwise agreed upon in an Order Form, all payment obligations under this Agreement are non-cancelable and all Fees paid are non-refundable. You must provide Pinecone with valid credit card or payment information as prompted by the Hosted Services as a condition for signing up for the Hosted Services. If you provide credit card information, you represent that you are authorized to use the card and you authorize Pinecone to charge that card for all payments for which you are responsible hereunder. By submitting payment information, you authorize Pinecone to provide that payment information to third parties for purposes of facilitating payment. You agree to verify any information requested by Pinecone for purposes of acknowledging or completing any payment for which you are responsible, and will immediately notify Pinecone of any change in your billing address or the credit card or other payment information used for payments hereunder.
   4. Late Payments. Any payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) on that overdue balance. Customer will be responsible for any costs resulting from collection by Pinecone of any such overdue balance, including, without limitation, reasonable attorneys’ fees and court costs. Pinecone reserves the right (in addition to any other rights or remedies Pinecone may have) to suspend Customer’s access to the Platform and the Hosted Services if any Fees are more than fifteen (15) days overdue until such amounts are paid in full.
   5. Taxes. The Fees do not include taxes, duties or charges of any kind. If Pinecone is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Pinecone’s income), then such taxes and/or duties shall be billed to and paid by Customer.
   6. Withholding Payments. If any applicable law requires Customer to withhold amounts from any payments to Pinecone hereunder, then Customer will perform such obligations consistent with the provisions of this section. Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Pinecone with tax receipts evidencing the payments of such amounts. The sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Pinecone receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Pinecone would have received and retained in the absence of such required deduction or withholding.
7. CONFIDENTIALITY.
   1. “Confidential Information” means any proprietary, confidential and/or trade secret information concerning or relating to the property, business and affairs of the party disclosing such information (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement, or any other information that the Receiving Party would reasonably understand to be confidential given the nature of the information or the circumstances surrounding disclosure. For the avoidance of doubt, Customer’s Confidential Information includes Customer Data, other thanPersonal Data (as defined in the Customer Data Protection Addendum). Such Personal Data is governed by Section 8 of this Agreement, and the Customer Data Protection Addendum incorporated herein by reference. Pinecone’s Confidential Information includes Performance Data, the proprietary and non-public portions of the Hosted Services, and the Materials provided in connection with this Agreement. Confidential Information shall not include information that a Receiving Party can demonstrate by reasonably sufficient evidence (i) was known to the Receiving Party before receipt thereof under this Agreement, (ii) is disclosed to the Receiving Party by a third party who has a right to make such disclosure without any obligation of confidentiality to the Disclosing Party, (iii) is or becomes generally known to the public or in the trade without violation of either this Agreement by the Receiving Party or any confidentiality obligation owed to the Disclosing Party by any third party, (iv) is furnished by the Disclosing Party to a third party without restriction on subsequent disclosure, or (v) is independently developed by the Receiving Party or its employees or subcontractors without reliance on such Confidential Information.
   2. The Receiving Party shall (i) not disclose Confidential Information to third parties (except to its directors, employees, agents or subcontractors to the extent such disclosure is necessary for the performance of this Agreement and who have agreed to restrictions similar to those set forth in this Section or except as may be required by law), (ii) not use Confidential Information except for the purposes contemplated by this Agreement and (iii) use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances.
   3. Upon expiration or termination of this Agreement, or upon request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy all Confidential Information in the possession of the Receiving Party. Each party acknowledges that it will not obtain any right, title or interest in or to the Confidential Information of the other Party as a result of disclosure under this Agreement.
   4. The parties acknowledge that the Confidential Information is unique and valuable, and that the Disclosing Party will have no adequate remedy at law if the Receiving Party does not comply with its obligations under this Agreement. Therefore, the Disclosing Party shall have the right, in addition to any other rights it may have, to seek in any court of competent jurisdiction temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any obligations of the Receiving Party if the Receiving Party fails to perform any of its obligations under this Agreement.
8. DATA PRIVACY; SECURITY.
   1. Data Privacy. Each party shall comply with their respective obligations under the Customer Data Processing Addendum located at https://www.pinecone.io/dpa/ (or such successor URL as may be designated by Pinecone) (“DPA”), which is incorporated herein by this reference. By each party’s acceptance and agreement to the terms and conditions of this Agreement, each party agrees to the terms of the DPA, including the Standard Contractual Clauses as “Data exporter” in the case of Customer, and as “Data importer” in the case of Pinecone.
   2. Security. Pinecone will use reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of, Customer Data. However, Pinecone shall have no responsibility for errors in transmissions or any other causes beyond Pinecone’s reasonable control.
   3. Customer Responsibility for Data and Security. Customer will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other usernames and passwords required in order the access the Platform and the Services. Upon request to Customer’s account manager, Pinecone may facilitate for Customer the ability to export Customer Data from the Platform. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Pinecone is not obligated to back up any Customer Data; the Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense.
9. WARRANTIES.
   1. Pinecone Limited Warranty. Pinecone warrants to you that during the term of this Agreement the Platform will perform materially in accordance with the functionality described in the documentation that Pinecone makes available for the Platform. Your sole and exclusive remedy for a breach of this warranty will be that Pinecone will use commercially reasonable efforts to modify the applicable Platform to achieve the functionality described above. This warranty is void in the event you are in breach of this Agreement. For clarity, this warranty will not apply to any trial or beta services.
   2. Customer Warranty. Customer represents and warrants that:
      1. it has procured all applicable consents required to provide the Customer Data to Pinecone for the performance of the Hosted Services, including in accordance with Section 3.1, and all applicable privacy laws;
      2. the Customer Data will not: (a) infringe or misappropriate any third party’s intellectual property rights; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage the Hosted Services, the Platform or Materials; and (d) otherwise violate the rights of a third party (including under all applicable privacy laws);
      3. it will use the Hosted Services, Platform and Materials in accordance with the terms herein and all applicable laws; and
      4. Customer shall not upload to the Hosted Services any Customer Data that contains any sensitive personal information (such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers) unless otherwise agreed in writing and signed between the parties.
      5. Customer agrees that any use of the Hosted Services, Platform or Materials contrary to or in violation of the representations and warranties of Customer in this Section 9.2 constitutes unauthorized and improper use of the Hosted Services, Platform or Materials, as applicable.
10. DISCLAIMER.
    1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE HOSTED SERVICES, THE PLATFORM, AND ALL OTHER MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 9.1, PINECONE MAKES NO WARRANTIES WITH RESPECT TO THE HOSTED SERVICES, THE PLATFORM OR THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE HOSTED SERVICES, THE PLATFORM, OR THE MATERIALS IS WITH CUSTOMER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PINECONE OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
    2. CUSTOMER ACKNOWLEDGES AND AGREES THAT PINECONE IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD PINECONE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
    3. FROM TIME TO TIME, pinecone MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT pinecone’s SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11. LIMITATION OF LIABILITY
    1. Generally. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE PLATFORM, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT, AND REGARDLESS WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL PINECONE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY arising out of or in any way connected to this agreement WILL IN NO EVENT EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID BY CUSTOMER UNDER this agreement IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) ONE HUNDRED UNITED STATES DOLLARS ($100.00). The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that this Agreement has been entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
    2. Basis of the Bargain. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN PINECONE AND CUSTOMER. PINECONE’S FEES FOR THE HOSTED SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
    3. Exclusions. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO: (A) A BREACH BY A PARTY OF SECTIONS 1.1, 2, OR 7; (B) CUSTOMER’S OBLIGATIONS UNDER SECTION 9.2; (C) INDEMNIFICATION OBLIGATIONS; OR (D) ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
12. INDEMNIFICATION
    1. By Pinecone. Pinecone will defend at its expense any suit brought against Customer, and will pay any settlement Pinecone makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Platform or the Hosted Services infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Platform or Hosted Services becomes, or in Pinecone’s opinion is likely to become, the subject of a claim of infringement (“Infringing Technology”), Pinecone may, at Pinecone’s option: (i) procure for Customer the right to continue using the Infringing Technology; (ii) replace the Infringing Technology with non-infringing software or services which do not materially impair the functionality of the Platform or Hosted Services; (iii) modify the Infringing Technology so that it becomes non-infringing; or (iv) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Platform and Hosted Services. Notwithstanding the foregoing, Pinecone will have no obligation under this section or otherwise with respect to any infringement claim based upon: (A) any use of the Platform or Hosted Services not in accordance with this Agreement or as specified in the Documentation; (B) any use of the Platform or Hosted Services in combination with other products, equipment, software or data not supplied by Pinecone; or (C) any modification of the Platform or Hosted Services by any person other than Pinecone or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Pinecone, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    2. By Customer. Customer will defend at its expense any suit brought against Pinecone, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to: (a) an Exclusion, or (b) Customer’s breach or alleged breach of Section 9.2. This section states the sole and exclusive remedy of Pinecone and the entire liability of Customer, or any of its officers, directors, employees, shareholders, contractors or representatives, for the claims and actions described herein.
    3. Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
13. TERM.
    1. Term and Termination. Unless otherwise specified in an Order Form, the term of this Agreement commences on the earlier of your clicking of the “I ACCEPT” button, and when you first access the Hosted Services and shall continue for so long as you access the Hosted Services. If Pinecone becomes aware of any possible violations by Customer of this Agreement, Pinecone may, in its discretion, immediately terminate or suspend Customer’s access to the Hosted Services (including the Platform) upon notice to you through your account or at the address you provided on the Order Form. Customer can discontinue using the Hosted Services at any time. Upon termination, Customer shall immediately cease all use of the Hosted Services (including the Platform), and delete or destroy all copies of any other Materials in the possession or control of Customer.
    2. Survival. Sections 1.1, 1.2, 1.3, 2, 3 - 7, 9 - 12, 13.2, and 14 shall survive termination or expiration of this Agreement.
14. GENERAL.
    1. Trade Control Laws. Customer shall comply with all export control and economic sanctions laws and regulations (collectively, “Trade Control Laws”) applicable to Customer in the performance of this Agreement. Pinecone shall not be required under this Agreement to be directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable Trade Control Laws. Customer represents and covenants that it (a) is not identified on, or owned or controlled by or acting on behalf of any individuals or entities identified on, applicable government restricted party lists (“Restricted Parties”); (b) is not located in, organized under the laws of or ordinarily resident in Cuba, Iran, North Korea, Sudan, Syria or Crimea (region of Ukraine/Russia) (“Restricted Countries”); and (c) will not directly or indirectly export, re-export or otherwise transfer any goods, technology or services covered by the Agreement to or for use in or from Restricted Countries or Restricted Parties.
    2. Assignment. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Pinecone, and any unauthorized assignment or transfer shall be void, provided, however, that either party shall have the right to assign the Agreement, without the prior written consent of the other party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of such party’s assets. This Agreement shall be binding upon the parties and their respective successors and permitted assigns.
    3. Notices. Where Pinecone requires that you provide an e-mail address, you are responsible for providing Pinecone with your most current e-mail address. In the event that the last e-mail address you provided to Pinecone is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Pinecone’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Pinecone at the following address: Pinecone Systems, Inc, 548 Market St PMB 19327, San Francisco, CA 94104-5401, Attn: NOTICE, or info@pinecone.io. Such notice shall be deemed given when received by Pinecone by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address, or by electronic mail.
    4. Choice of Law; Venue. This Agreement shall be governed by laws of the State of California, without regard to the choice of conflicts of law provisions of any jurisdiction. Customer submits to the exclusive jurisdiction and venue of the federal and state courts located in Santa Mateo County, California for any disputes arising out of or related to this Agreement.
    5. Severability. If any term of this Agreement is found by competent judicial authority to be unenforceable in any respect, the validity of the remainder of this Agreement will be unaffected, provided that such unenforceability does not materially affect the parties’ rights under this Agreement.
    6. Waiver. An effective waiver under this Agreement must be in writing signed by the party waiving its right. A waiver by either party of any instance of the other party’s noncompliance with any obligation or responsibility under this Agreement will not be deemed a waiver of subsequent instances.
    7. Independent Contractor. Neither this Agreement nor the cooperation of the parties contemplated under this Agreement shall be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Except as otherwise expressly permitted in this Agreement, neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise
    8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
    9. U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Platform and the Services and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
    10. Entire Agreement; Order of Precedence. This Agreement, including any Order Form executed hereunder, constitutes the entire understanding of the parties with respect to the transactions and matters contemplated hereby and supersedes all previous communications, representations, agreements and understanding relating to the Hosted Services, the Platform, and the Materials. No representations, inducements, promises or agreements, whether oral or otherwise, between the parties not contained in this Agreement, including any applicable Order Form, shall be of any force or effect. In the event of a conflict between a provision in the body of this Agreement and a provision in an Order Form, the provision in this Agreement shall take precedence unless, and then only to the extent the conflicting term in the Order Form expressly states which sections are intended to be superseded by the Order Form.