Last updated: September 21, 2020
This Subscriber Agreement (the “Agreement”) is entered into by and between PacerMonkey, LLC d/b/a PacerDash (“PacerDash”) and the individua l or organization agreeing to the terms of this Agreement (“Customer”). This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; or (b) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.
Provision of the Service. PacerDash shall make the Service purchased available to Customer pursuant to this Agreement during the applicable Subscription Term. The Service includes the features and functionality applicable to the version of the Service ordered by Customer. PacerDash may update the content, functionality, and user interface of the Service from time to time in its sole discretion.
Access Rights. Customer has a non-exclusive, non-sublicenseable, non-transferable right to access and use the Service pursuant to this Agreement during the applicable Subscription Term, solely for Customer’s personal or internal business purposes.
Subject To Terms of Service. Customer's use of the Service is subject to PacerDash's Terms of Service. PacerDash reserves the right to suspend or terminate the account of any Customer who violates this Agreement or the Terms of Service. In such event, no refund for previously paid fees will be issued.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROFESSIONAL SERVICES, SERVICE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PACERDASH AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT PACERDASH DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. PACERDASH IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
Subscription Fees. Customer shall pay all fees when due and is responsible for providing complete and accurate billing information to PacerDash. If such fees are being paid via credit card or other electronic means, Customer authorizes PacerDash to charge such fees using Customer’s selected payment method. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein. Where Customer designates use of a third-party payment processor network (such as a payment agent, for example), Customer shall be responsible for payment of all fees and charges associated with use of such network. PacerDash reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue. Suspension shall not relieve Customer’s obligation to pay amounts due.
Auto-renewal. Customer agrees that its Subscription will automatically renew on an monthly, quarterly, or annual basis depending on Customer’s Subscription (the “Renewal Date”). Customer authorizes PacerDash to automatically charge Customer for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement. Customer must cancel its Subscription prior to the Renewal Date in order to avoid billing of the next period’s Subscription fees. Customer can cancel its Subscription anytime online by going into its account settings and following the instructions provided. If Customer chooses to cancel its Subscription during the Subscription Term, the Customer's access may use the Service until the end of Customer’s then-current Subscription Term or renewal period, but will not be issued a refund for the most recently (or any previously) charged fees.
Taxes Any fees charged to Customer are exclusive of taxes. Except for those taxes based on PacerDash’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service be subject to withholding tax by any government, Customer shall reimburse PacerDash for such withholding tax.
Future Features and Functionality Customer agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by PacerDash regarding future features or functionality. PacerDash may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service.
IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Governing Law; Venue; Arbitration. This Agreement and any disputes arising under it will be governed by the laws of the State of New York without regard to its conflict of laws provisions, as set forth in PacerDash's Terms of Service. Customer agrees that any disputes or claims arising under this Agreement will be finally and exclusively resolved by binding arbitration, as set forth in the Terms of Service.
Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Modifications. PacerDash may revise this Agreement from time to time by posting the modified version on its website. If, in PacerDash’s sole discretion, the modifications proposed are material, PacerDash shall provide Customer with notice via email. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, Customer agrees to be bound by the revised version of the Agreement.
“Order Form” means an ordering document or an online order set forth in the Service interface entered into between Customer and PacerDash (or Affiliates of either party) specifying the Service to be provided under this Agreement.
“Subscription” means the access to the Service purchased by Customer.
“Subscription Term” means the period identified in the Order Form during which Customer is permitted to use or access the Service pursuant to the terms set forth in this Agreement.
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