This Agreement for PageDNA Services, along with its appendices and documents incorporated by reference (the "Agreement") constitutes the agreement between PageDNA, Inc. ("PageDNA") and the user accessing the PageDNA Services as defined below "Customer"), each a "party" and collectively the "parties". This Agreement includes any form or request for services submitted by Customer (including via PageDNA's online storefront application described in Section 1.1(a)) and accepted by PageDNA that describes the services and products to be purchased by Customer from PageDNA and the pricing that will apply to such services and products ("Service Request").
By accepting the terms of this Agreement Customer is (i) representing and warranting that Customer can legally enter into this Agreement, and (ii) expressly agreeing to the terms of this Agreement. If Customer does not accept this Agreement, Customer is not authorized to use the PageDNA Services. If Customer has any questions about this Agreement, please contact PageDNA at support@PageDNA.com .
In consideration of the mutual promises and obligations set out in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, and intending to be legally bound, the parties agree as follows:
During the term of this Agreement, subject to the terms of this Agreement and payment of the applicable fees by Customer under this Agreement, PageDNA will provide Customer the following services (together, the "PageDNA Services"):
Access to Marketing Automation Platform:
Technical and Account Support
PageDNA will provide Customer with email and/or telephone access to technical and account support for the Marketing Automation Platform from 8:30 AM to 5:00 PM Pacific time (11:30 AM to 8:00 PM EST) Monday through Friday except during PageDNA Holidays which are listed in Appendix B. Customer may be required to be certified as having received PageDNA's "Basic Training" (or similar) before Customer receives certain support from PageDNA.
Customer may engage PageDNA to perform professional services to set up electronic ordering storefronts and catalog items via the applicable online form available on PageDNA's website ("Professional Services"). Customer may need to provide PageDNA with access to Customer's relevant artwork files before PageDNA can provide Customer with a quote for such Professional Services. The Professional Services will be provided by PageDNA in accordance with this Agreement and on terms (including pricing) to be agreed between the parties, specified in writing and signed by both parties ("PS Order"). The Professional services will be provided on a time-and-materials basis at rates listed in Customer's PS Order (or if no rates are listed, then in Appendix A).
Uptime Service Level
Subject to Sections 2.2 and 3, if in any calendar month, the PageDNA Marketing Automation Platform is Not Available for a total of more than eight hours in that month, Customer will be entitled to receive a service level credit equal to five (5) percent of the amount invoiced by PageDNA to Customer for the Marketing Automation Platform for each complete hour (above eight hours) the Online Printing Service is Not Available in that month in accordance with Section 2.2. "Not Available" means that the Marketing Automation Platform is inaccessible by Customer such that Customer is unable to place orders for the online print services using the Marketing Automation Platform, despite following all instructions on the application, for a period exceeding fifteen (15) minutes. This service level credit will constitute Customer's sole and exclusive remedy for any failure by PageDNA to meet or exceed the service level in this Section 2.1.
Service Level Credit Procedure
In order to receive a service level credit under Section 2.1, Customer must not have any "past due" outstanding invoices for any PageDNA Services and Customer must notify PageDNA by emailing billing@PageDNA.com with details of the service level failure incident within one calendar week of the relevant incident, and provide PageDNA with the necessary resources and assistance as requested by PageDNA to validate, replicate and investigate the issue. Failure to comply with any this requirement will forfeit Customer's right to receive a service level credit. If Customer is entitled to receive any service level credits, such credits will be applied within ninety (90) days to Customer's oldest outstanding invoice for access to the Marketing Automation Platform ("Relevant Invoice"). The maximum service level credits that the Customer may receive in any one calendar month are limited to the total amount invoiced by PageDNA to Customer under the Relevant Invoice. Service level credits are only payable as a credit against the Relevant Invoice, and will not be payable to Customer in any other form and may not be set-off by Customer against any future fees payable by the Customer under this Agreement or any separate agreement between Customer and PageDNA.
Response Time Service Level
Subject to Section 3, PageDNA will use commercially reasonable endeavours to meet the response time set out in Appendix C as updated from time to time by PageDNA in accordance with Section 11.
Customer will not be entitled to any service level credits and PageDNA will not be liable for a failure to provide any of the PageDNA Services to the extent PageDNA's failure is the result of:
Customer acknowledges and agrees that any set up timeframes relating to the Platform agreed by the parties are targets only and are not commitments or service levels. PageDNA will not be liable for any failure to meet such timeframes.
Customer acknowledges and agrees that as between Customer and PageDNA, Customer is responsible for the following:
CUSTOMER ACKNOWLEDGES AND AGREES THAT PAGEDNA IS NOT RESPONSIBLE FOR ANY OF THE ABOVE, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM THE ABOVE. THE PAGEDNA SERVICES MAY NOT WORK PROPERLY OR AT ALL IF CUSTOMER FAILS TO ENSURE THAT THE ABOVE DEPENDENCIES ARE PROPERLY SATISFIED.
Customer will not and will ensure that no third party within Customer's reasonable control will:
PageDNA is a subscription service and pricing is subject to change. New pricing takes effect upon renewal of your subscription. Your subscription is handled differently based on the nature of how you purchased PageDNA:
i. Direct - Month to Month Pricing Plans
You’ll be charged the prevailing plan rate at the time of contract renewal, which is every month, until you cancel.
ii. Direct - Annual Pricing Plans
Direct Annual Pricing plans are pre-paid for one to five years, with pricing set for the duration of your contract. You will be provided renewal options under prevailing pricing plans a minimum of 60 days before contract expiration.
iii. Annual Pre-Paid Pricing Plans (Re-seller)
Direct Annual Pricing plans are pre-paid for one to five years, with pricing set for the duration of your contract. PageDNA will make every effort to ensure you are provided renewal options by your Reseller under their prevailing pricing plans a minimum of 60 days before contract expiration.
Note: All fees for accounts sold by Resellers are determined by the Reseller, and PageDNA does not control the pricing that Customer is charged. Matters such as price, delivery, and payment terms must be agreed upon between Customer and Reseller.
Customer will pay PageDNA for the PageDNA Services including but not limited to:
Unless otherwise specified in a Service Request or PS Order, activation fees will be billed in advance. All other charges and expenses under this Agreement will be billed at the end of the month in which the relevant PageDNA Services were provided. Unless otherwise specified in a Service Request, payment for all fees under this Agreement must be paid by Customer upon receipt of invoice, unless otherwise specified on the invoice. Accepted payment methods include credit card and ACH. Customer will remit all payments to PageDNA in U.S. dollars. By purchasing a subscription to the PageDNA Services, Customer authorizes PageDNA to keep Customer subscription current by charging Customer's credit card or other financial account the relevant monthly or annual fee and all applicable taxes until the expiry or termination of this Agreement.
Without limiting any other rights or remedies available to PageDNA, PageDNA reserves the right to suspend any Customer accounts that are more than 60 days past due. Suspended accounts will not be re-established until the balance due on the account has been paid in full. Suspended accounts may lose the privilege of paying on account and require credit card or ACH payment to continue service. Suspended accounts may have any or all of the following services suspended: support, order delivery, access to the Hub and availability of storefronts. PageDNA reserves the right to shut down and remove any storefronts and associated order data for accounts suspended for more than thirty (30) days without liability or notice to Customer.
If PageDNA makes an error on Customer's bill, Customer must tell PageDNA within one hundred and twenty (120) days after an error first appears on Customer's bill. Fees are still due while PageDNA investigates any errors, and invoices must still be paid in full according to the terms set in Section 5.3. Customer releases PageDNA from all liability and claims of loss resulting from any error that Customer does not report to PageDNA within one hundred and twenty (120) days after the error first appears on Customer invoices. If Customer does not tell PageDNA within this timeframe, PageDNA will not be required to correct the error. PageDNA can, but is not obligated to correct billing errors at any time.
Additional fees may be payable by Customer for any Updates to the Marketing Automation Platform requested by Customer.
The initial term of this Agreement will commence upon the date Customer accepts this Agreement, and will continue for the period defined in Customer's applicable Service Request.
Following the initial term, this Agreement will automatically renew for additional terms defined in Customer's applicable Service Request, unless either party gives written notice to the other thirty (30) days prior to the end of the existing term of its intent not to renew.
Right to Terminate:
Either party may terminate the agreement at any time: (i) in the event of a material breach by the other party that remains uncured after thirty (30) calendar days written notice thereof; (ii) if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary, proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors if such petition or proceeding is not dismissed within sixty (60) days of filing. PageDNA will also have the right to terminate this Agreement immediately upon notice to Customer if Customer has breached section 1.1, 4.2, or 7.3(b) or has infringed or violated any intellectual property rights of PageDNA.
Termination or Expiry
Upon termination or expiry of this Agreement (i) all rights of Customer to use and access the PageDNA Services will cease; and (ii) Customer will pay PageDNA all amounts due and un-reimbursed out-of-pocket expenses incurred by PageDNA up to the date of termination or expiry. PageDNA will have no obligation to refund any amounts previously paid to PageDNA; and (iii) Sections 6, 7, 8, 9, and 12 will survive.
As between PageDNA and Customer, PageDNA retains all rights, title, and interest in and to the PageDNA Services (which include without limitation all software (in source and object forms), tools, applications, hardware designs, algorithms, user interface designs, architecture, class libraries, objects, documentation, network designs, know-how, and trade secrets in the PageDNA Services), any Updates or modifications, enhancements, upgrades, or improvements to, or derivative works of, the PageDNA Services, any materials and work product developed by PageDNA for Customer in connection with this Agreement, including the Professional Services, and any intellectual property rights throughout the world in any of the foregoing. Except for the right to access the PageDNA Services expressly specified in Section 1, this Agreement does not grant any right, license, title, or interest in or to the PageDNA Services or any PageDNA trademark, copyright, trade name, or service mark to Customer.
Professional Services Work Product:
Subject to Customer's payment of the fees applicable to the Professional Services, PageDNA hereby grants Customer a limited, non-sublicenseable, non-transferable, royalty-free, revocable and non-exclusive license to use any materials and work product developed by PageDNA specifically for Customer and described in the PS Order for the sole purpose of Customer accessing and using the Marketing Automation Platform to which such materials and work products relate in accordance with this Agreement for the term of this Agreement.
Each party acknowledges that it will have access to Confidential Information of the other party, where "Confidential Information" means information of either party that can reasonably be considered as being confidential in nature, including without limitation information concerning that party's business, plans, customers, technology, and products (including the pricing of products), regardless of whether the information is in tangible or intangible form and regardless of whether the information is designated as being confidential. The parties agree, during the term of this Agreement and for a period of five (5) years thereafter, to hold each other's Confidential Information in confidence, not to make each other's Confidential Information available in any form to any third party other than those of its employees, permitted contractors, and professional advisers on a "need to know" basis and under substantially the same nondisclosure obligations. Each party agrees to take commercially reasonable steps, which are at least as stringent as it takes to protect its own Confidential Information, to ensure that Confidential Information is not disclosed or distributed in breach of this Section 7.4. Notwithstanding the foregoing, neither party will be required to maintain in confidence any of the following information: (i) information that, at the time of disclosure to the receiving party, is in the public domain; (ii) information that, after disclosure, becomes part of the public domain, except by breach of this Agreement; (iii) information that was in the receiving party's possession at the time of disclosure by the disclosing party, and that was not acquired, directly or indirectly, from the disclosing party; (iv) information that the receiving party can demonstrate resulted from its own research and development, independent of disclosure from the disclosing party; (v) information that the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or (vi) information that is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
Subject to Sections 8.3, 8.4 and 8.5
PageDNA agrees to defend and hold Customer harmless from and against any losses, damages or claims, including reasonable legal fees and expenses, arising out of any third party claim made against Customer alleging that the Marketing Automation Platform infringes such third party's intellectual property or other proprietary rights ("Third Party Claim").
If the use of the Marketing Automation Platform infringes, or in PageDNA's determination, may be likely to infringe, a third party's intellectual property or other proprietary rights, PageDNA may, in its sole discretion and at its option and expense (i) obtain for Customer the right to use the allegedly infringing item(s), (ii) substitute a functionally equivalent, non-infringing replacement for such item, (iii) modify such item to make it non-infringing, or, if (i) – (iii) are not commercially feasible, (iv) terminate the Agreement without further liability to Customer.
Notwithstanding anything in this Agreement to the contrary, PageDNA will have no obligation or liability to Customer or any third party for any Third Party Claim directly or indirectly arising from:
The indemnification obligation under Section 8.1 only applies if Customer provides PageDNA with:
THE REMEDIES IN THIS SECTION 8 REPRESENTS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND PAGEDNA'S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY THIRD PARTY CLAIM.
DISCLAIMER OF WARRANTIES
THE PAGEDNA SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS AND PAGEDNA DOES NOT WARRANT THAT THE PAGEDNA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. PAGEDNA HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PAGEDNA SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE (NOT EXPRESSLY CONTEMPLATED UNDER SECTION 8), AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
LIMITATION OF LIABILITY:
EXCEPT WITH RESPECT TO PAGEDNA'S LIABILITY UNDER THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, IN NO EVENT WILL PAGEDNA BE LIABLE TO THE CUSTOMER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY: (1) IN CONNECTION WITH ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOSS OR DAMAGE IN CONNECTION WITH INTERRUPTION OF USE OF THE PAGEDNA SERVICES OR LOSS OF REVENUE, PROFITS, BUSINESS, OR DATA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES); OR (2) FOR AN AMOUNT EXCEEDING THE AGGREGATE FEES PAID BY CUSTOMER TO PAGEDNA UNDER THIS AGREEMENT.
All communications by Customer to PageDNA in connection with this Agreement will be directed as follows:
1325 4th Ave Suite 1035
Seattle, WA 98101
Subject to Section 11, all communications by PageDNA to Customer in connection with this Agreement will be directed to the contact details that Customer has provided in the PageDNA User Administration console, which Customer can access and update at http://PageDNA.com/hub/useradmin or such other site designated by PageDNA from time to time.
Notice will be deemed to have been given upon delivery in the case of overnight mail or courier, five (5) business days after being sent by first class mail, or upon receipt by the sender of a reply e-mail or receipt acknowledgement (which can be automated) from the recipient in the case of e-mail.
PageDNA may amend appendices A, B or C upon at least forty-five (45) days' notice to Customer.
PageDNA may amend other portions of this Agreement at any time upon notice to Customer.
A notice provided under Section 11.1 or 11.2 may be provided at PageDNA's discretion in accordance with Section 10 or by posting the notice via the URL http://user.PageDNA.com/legal.php?agreement or such other URL designated by PageDNA from time to time. Any notice posted on such URL will be deemed delivered immediately.
This Agreement will be governed by and interpreted in accordance with the laws of the State of California, excluding (i) any law or principle thereof that would result in the application of the law of any other jurisdiction (ii) the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in San Mateo County, California, and the parties hereby expressly consent to exclusive jurisdiction and venue therein.
Customer acknowledges and agrees that PageDNA may subcontract its obligations, including the provision of the PageDNA Services under this Agreement, to any third party.
The parties agree that this Agreement is the complete agreement for the PageDNA Services and its subject matter and supersedes all prior agreements concerning the subject matter hereof and that this Agreement may not be modified by custom or usage.
The parties are independent contractors. This Agreement will not constitute either party as the employee, legal representative, or agent of the other. Neither party may bind the other in any way.
PageDNA will not be liable or deemed in default for any delay or failure in performance of this Agreement, including any service levels, to the extent that such delay or failure is caused by any event beyond PageDNA's reasonable control, including without limitation to, any accident, fire, industry-wide strike, embargo, act of the government, war, terrorism or national emergency requirement, act of God, act of the public enemy, electrical, Internet, or telecommunication outage that is not caused by PageDNA, or any other cause beyond the reasonable control of PageDNA.
Order of Precedence
To the extent of any conflict or inconsistency between the provisions in the body of this Agreement, any Appendix or any document incorporated by reference (including any Service Requests or PS Orders), the document listed earlier in this sentence will prevail to the extent of that conflict or inconsistency. The terms and conditions set out in any purchase order issued by Customer are expressly excluded from this Agreement. A Customer purchase order that is accepted by PageDNA may serve as a supplement to this Agreement with respect to Customer's order of PageDNA Services; such purchase order will be effective and binding on the parties only as to quantity and price, and will otherwise be governed by this Agreement.
No Third-Party Beneficiaries
The parties agree that there are no third-party beneficiaries to this Agreement.
No Construction Against Drafter
The parties agree that any presumption or other rule of contract construction that ambiguities will be construed against the drafter will not be applied in the interpretation of this Agreement.
If any provision or portion of a provision of this Agreement is invalid under applicable statute or rule of law, it is only to that extent to be deemed omitted, and such unenforceability will not affect any other provision of this Agreement, but this Agreement will then be construed as if such unenforceable provision(s) had never been contained herein.
Waiver and Estoppels.: Either party's failure at any time to enforce any of the provisions of this Agreement or any right with respect thereto, or to exercise any option herein provided, will in no way be construed to be a waiver of such provisions, rights, or options or in any way to affect the validity or enforcement of this Agreement. All waivers must be in writing to be effective.
Certain production, programming, security, and continuous support issues may trigger a higher site fee from PageDNA than shown on Customer's Service Request which specified Customer's selected pricing plan. While very rare in practice, PageDNA reserves the right to charge a higher site fee than PageDNA's standard rates as agreed between the parties when one or more of the following conditions apply:
PageDNA recognizes the following official holidays:
PageDNA will respond with a human response to all support inquiries sent to support@PageDNA.com within 24 business hours, with exception of Official Holidays as outlined in Appendix B. The human response will be in the form a reply email or call back (without the obligation to call more than once if Customer does not pick up PageDNA's call) using the contact details Customer has provided. Customer is not entitled to any service level credits if PageDNA fails to meet or exceed this service level target.
Please email us at sales@PageDNA.com or contact our sales department via phone at:
(888) 472-4336 x3×